R v Granger - [2004] SASC 156

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GRANGER
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Mullighan)
8 June 2004
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - FOR SALE OR SUPPLY
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - LEGISLATION AND LEGISLATIVE POWERS - LEGISLATIVE POWERS - POWER TO ACT CONTRARY TO SEPARATION OF POWERS DOCTRINE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - EFFECT OF OPINION OF TRIAL JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OTHER OFFENCES
Appeal against conviction and sentence - appellant was charged with possession of cannabis for sale under s 32(3) of the Controlled Substances Act, 1985 (SA) - s 32(3) contained a statutory presumption that cannabis was in possession for the purpose of sale - whether the presumption is invalid in that it interferes with the exercise of judicial power - whether the presumption is invalid in that its operation results in an unfair trial - whether the presumption is invalid as it is given an unreasonable or irrational operation - whether the trial Judge erred in rejecting the accused's evidence of cannabis use - whether the trial Judge erred in sentencing the appellant on the basis that all cannabis was for sale - whether the trial Judge erred in sentencing the appellant by failing to consider exercising power conferred by s 58(3) of the Criminal Law (Sentencing) Act - whether the trial Judge erred in sentencing the appellant by failing to exercise the power conferred by s 58(4)(a) of the Criminal Law (Sentencing) Act - appeal against conviction and sentence dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(a), s 32(1)(e), s 32(3), s 45A; Judiciary Act 1903 (Cth) s 78B; Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(ka), s 58(3), s 58(4)(a); Criminal Assets Confiscation Act 1996 (SA) s 15(2), s 15(5)(d); Human Rights Act 1988 (UK); Canadian Charter of Rights and Freedoms s 1, referred to.
R v Zampogna (2003) 85 SASR 56, applied.
R v Oakes (1986) 26 DLR (4th) 200; R v Lambert [2002] 2 AC 545; Attorney-General (Hong Kong) v Lee Kwong-Kut [1993] AC 951, distinguished.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Nicholas v The Queen (1998) 193 CLR 173; Milicevic v Campbell (1975) 132 CLR 307, discussed.
R v Rowan (2003) 85 SASR 347; Grollo v Palmer (1995) 184 CLR 348; R v Kirby; ex parte Boilermakers' Society of Australia (1956) 94 CLR 245; Silbert v Director of Public Prosecutions (WA) (2002) 25 WAR 330; Attorney-General (Qld) v Fardon [2003] QCA 416; Re Criminal Proceeds Confiscation Act 2002 (Qld) [2003] QCA 249; Bachrach Pty Ltd v The State of Queensland (1998) 195 CLR 547; Silbert v Director of Public Prosecutions (WA) [2004] HCA 9; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; Williamson v Ah On (1926) 39 CLR 95; Dietrich v The Queen (1997) 177 CLR 292; R v Buckman (1988) 47 SASR 303; Director of Public Prosecutions v Alexander (2003) 86 SASR 577; R v Carpentieri (2001) 81 SASR 164; Reg and Attorney-General (Cth) v Associated Northern Collieries and Ors (1911) 14 CLR 387; The Commonwealth and Anor v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1; Actors and Announcers Equity Association v Fontana Films Pty Ltd [1981-1982] 150 CLR 169; Jago v District Court of New South Wales (1988) 12 NSWLR 558; Mabo v Queensland (No 2) (1992) 175 CLR 1; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Ong Ah Chaun v Public Proseuctor [1981] AC 648, considered.

R v GRANGER
[2004] SASC 156
Court of Criminal Appeal: Doyle CJ, Perry and Mullighan JJ

DOYLE CJ Mr Granger was charged on Information with knowingly having cannabis in his possession for the purpose of selling it to another person, contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA) (“the CSA”). He was also charged with knowingly producing cannabis, contrary to s 32(1)(a) of the CSA. He pleaded not guilty to the first charge, and guilty to the second.
He was tried by a Judge of the District Court sitting without a jury, having elected to be so tried. He was found guilty on the first charge. The quantity of cannabis involved in the first charge made him liable to a penalty not exceeding a fine of $500,000.00 or imprisonment for a period not exceeding 25 years, or both. The Judge imposed a single sentence of imprisonment for two years three months. The two offences gave rise to a breach of a bond to be of good behaviour entered into only some six months before these offences. A sentence of two years imprisonment had been suspended upon Mr Granger entering into the bond. The Judge revoked the suspension of the sentence. That meant that Mr Granger was liable to serve a total of four years three months imprisonment. The Judge fixed a non-parole period of two years in relation to these sentences.
Mr Granger appeals against his conviction on the first count, and against the sentence.
The District Court proceedings
There was no dispute that Mr Granger was growing cannabis plants at his home. He had purchased equipment to grow them using the hydroponic method. There was no dispute that at his home police found cannabis leaf and female plant head (the most desirable form of cannabis) that weighed 17 kilograms. The police found nothing to suggest that Mr Granger was engaged in selling cannabis. The prosecutor led evidence that distributors often purchased cannabis from growers who grew a small number of plants, being a number that gave rise to an offence but (if the purpose was not for sale) attracted only a fine or an expiation notice. That number of plants was originally ten (to 2 June 1999), then three (to July 2000) then 10 (for a few weeks) then three again from 24 August 2000. Mr Granger was growing three plants when the police went to his house. However, the relevant number of plants had been reduced to one from 29 November 2001, and was one at the time when Mr Granger committed the offence. The value of the plant material found at Mr Granger’s home was between about $11,000.00 and $35,000.00, depending on how the cannabis was sold. Mr Granger’s financial circumstances were modest. His income was limited, as were his expenses. There was no evidence that he had received money in circumstances calling for an explanation. Although he had limited income, and said that he spent little, the hydroponic equipment that he had would have cost him about $1,300.00.
Mr Granger gave evidence. He said that he was a long-term heavy smoker of cannabis, to relieve pain and to cope with depression. His counsel led medical evidence supporting the claim that he suffered from pain (the causes do not matter) and from depression. The Judge appears to have accepted this evidence. On his evidence, the plant material would have lasted him about five months.
Mr Granger said that he did not intend to sell any of the cannabis. He intended to smoke it himself.
Section 32(3) of the CSA provides:
“For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person.”
The prescribed amount of cannabis for the purpose of the sub-section is 100 grams: Schedule 2 to the Controlled Substances (Prohibited Substances) Regulations 2000. The amount of cannabis in his possession was about 17 kilograms, and accordingly sub-section (3) applied. That provision has been interpreted as requiring the accused to satisfy the court on the balance of probabilities that he did not have the relevant drug or substance in his possession for the purpose of sale: R v Zampogna [2003] SASC 75; (2003) 85 SASR 56 at [43] – [44].
Mr Granger’s evidence did not satisfy the Judge that he did not have possession of the cannabis for the purpose of sale. The Judge’s conclusion is reflected in the following paragraphs:
“[80]. I cannot accept that, on the evidence, that it was more likely than not that the cannabis produced by the accused was solely for his own use, and/or occasional supply to friends. I cannot accept the submission that the accused’s personal and financial circumstances, around the time of the offence charged, were inconsistent with a financial incentive associated with the sale of cannabis.
[81]. I am not satisfied, on the balance of probabilities, that the accused did not have the cannabis, or some of it, in his possession for the purpose of sale. I am satisfied that the charge in count 1 is proved beyond reasonable doubt. I find the accused guilty as charged.”
In the course of her reasons, the Judge acknowledged the possibility that Mr Granger did not have the cannabis for the purpose of selling it to another person. The Judge said:
“[72]. The result of the application of the presumption provided for in section 32(3) facilitates proof of an offence, which might otherwise be difficult to prove. It may attribute to the accused a purpose that he in fact did not entertain. It is a rebuttable presumption.
[73]. On the evidence, it is possible that the accused did not have cannabis in his possession for the purpose of sale. However, it is for the accused to establish on the balance of probabilities, that is, that it is more likely than not that he did not have cannabis in his possession for the purpose of the sale of that substance to another person.” (Footnote omitted).
Those observations reflect the fact that the statutory presumption had not been displaced.
Conviction appeal – grounds
Mr Schapel, counsel for Mr Granger, submits that s 32(3) of the CSA is invalid. It is invalid because it confers on the District Court a function of a non-judicial character or a function that is incompatible with the exercise of the judicial power of the Commonwealth, a judicial power that the District Court may be called upon to exercise by virtue of the Judiciary Act 1903 (Cth). There is no suggestion that the District Court was exercising the judicial power of the Commonwealth. The charge was laid under State law. The challenge to the validity of s 32(3) was not raised at trial.
Alternatively, he submits that s 32(3) requires the District Court to act in a manner incompatible with the manner in which a Court exercising the judicial power of the Commonwealth must act, and in a manner that requires an unfair trial. He relied on the decision of the High Court in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. These submissions were elaborated in a variety of ways, emphasising different aspects of the operation of s 32(3).
Notice was given to the Attorneys-General of the Commonwealth, of the States and for the Territories of Australia pursuant to s 78B of the Judiciary Act 1903 (Cth).The Attorney General for South Australia intervened to put submissions in support of the validity of the section.
Mr Schapel also submits that s 32(3) should be interpreted as requiring Mr Granger to do no more than point to evidence capable of supporting a conclusion that he did not have the cannabis for the purpose of sale and that once such evidence was before the Court the burden remained on the prosecutor to prove beyond reasonable doubt that his purpose was that of sale, without resort to the statutory presumption. He did not argue that Zampogna was wrongly decided. He referred to decisions such as R v Oakes (1986) 26 DLR (4^th) 200, R v Lambert [2002] 2 AC 545 and Attorney-General (Hong Kong) v Lee Kwong-Kut [1993] AC 951, decisions dealing with the impact on presumptions of provisions in Bills of Rights and Conventions preserving the presumption of innocence in particular.
While the argument put on this point has some attraction, this Court should continue to follow its decision in Zampogna unless that decision is overruled, or, alternatively, unless the Court is persuaded that it should depart from the decision.
A further submission put was that s 32(3) of the CSA applies only when the offence charged is that of possessing the drug or substance for the purpose of sale or supply. The offence here charged and particularised was that of possessing cannabis for sale only. This submission was previously rejected by this Court in R v Rowan [2003] SASC 138; (2003) 85 SASR 364. The submission was put but not elaborated, Mr Schapel indicating that the correctness of Rowan might be challenged if this matter goes to the High Court.
In the course of his submissions, Mr Schapel made a close analysis of the Judge’s reasons. That resulted in an application to amend the grounds of appeal to add a further ground, to the effect that the Judge failed to deal adequately with Mr Granger’s evidence. Her comments which I have set out above were said to reflect a recognition that Mr Granger might be telling the truth about the purpose for which he had the cannabis. Mr Schapel argued that if the Judge was not prepared to reject this evidence, the Judge could not conclude that he had failed to satisfy her that his purpose was other than sale. He argued that the Judge had to resolve the question of Mr Granger’s credibility, before she could properly conclude that he had not discharged the onus on him. The Court heard argument on this ground, and reserved its decision on the application to amend the Notice of Appeal.
Sentence appeal – grounds
Mr White argued this ground of appeal. He submits that the Judge failed to consider the application of s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA) before revoking the suspension of the earlier sentence, and in particular when deciding whether to excuse the breach of bond, and s 58(4)(a) before deciding not to reduce the term of the suspended sentence of imprisonment. He submits that the Judge failed to make findings as to the basis on which he sentenced Mr Granger. He argued that she had to make a finding about the amount of cannabis that Mr Granger had for the purpose of sale, and the amount that he had for the purpose of his own consumption, and failed to do so. He submits that the Judge failed to allow adequately for the prospects of rehabilitation, and for the likely forfeiture of the house and land on which the offences were committed.
Validity of section 32(3)
For the purpose of considering the submissions as to the validity of s 32(3), I will assume that it required Mr Granger to prove on the balance of probabilities that he did not have the cannabis in his possession for the purpose of selling it to another person. That is the affect of the decision in Zampogna. If the section required Mr Granger to do no more than identify evidence capable of supporting a finding in his favour, the burden of proving beyond reasonable doubt that his purpose was to sell then resting on the prosecution, without the assistance of the statutory presumption, I did not understand Mr Schapel to argue that the section would be invalid.
It is necessary to consider s 32(3) of the CSA and Schedule 2 of the Regulations separately. It is conceivable that the power to prescribe an amount for the purpose of s 32(3) of the CSA is validly conferred, and that it is Schedule 2 which is invalid because the prescribed amount is as little as 100 grams. There are some points to be made relevant to the latter point. A person in possession of less than 100 grams of cannabis (and not intending to sell the cannabis or supply it to another person) can be prosecuted for the offence of possessing the cannabis (called a “simple cannabis offence”) only if the person has first been given an expiation notice and then has failed to pay a fine of $150.00: s 45A of the CSA. The same is true of a person who cultivates only one cannabis plant, as long as it is not cultivated hydroponically or using “an artificial source of light or heat”, and yet a single plant is capable of producing several hundred grams of usable cannabis material. It also goes without saying that a person in possession of 99 grams of cannabis is not affected by the presumption, whereas a person in possession of 100 grams is affected by the presumption. These matters were said to demonstrate that the presumption did not operate in a rational or reasonable manner.
In Kable four members of the High Court held that the scheme embodied in Chapter III of the Australian Constitution had the effect of preventing a State Parliament from conferring on the Supreme Court of the State (Gaudron, McHugh and Gummow JJ) or on a State court exercising federal jurisdiction (Toohey J) powers or functions that are repugnant to or inconsistent with or incompatible with the exercise by that court of the judicial power of the Commonwealth. The other two members of the Court (Brennan CJ and Dawson J) denied that any such principle was to be implied from Chapter III of the Constitution.
My understanding of the reasons of the majority of the High Court suggests that the principle stated by them applies to the Supreme Court of a State whether or not it is actually exercising federal jurisdiction. It may be that the same principle would be held to apply to other State courts, such as the District Court, in which the judicial power of the Commonwealth is currently invested, whether or not in the case in question that jurisdiction was enlivened. However, for reasons that will appear, it is not necessary for me to resolve that issue.
Although, in the end, I consider that Mr Schapel’s argument can be dealt with on a narrower basis than the Kable principle, it is helpful to begin with a consideration of what was said in Kable.
Toohey J dealt with the matter by reference to principles stated in Grollo v Palmer (1995) 184 CLR 348. That case dealt with the vesting in a designated Judge of the Federal Court the power to issue interception warrants. Toohey J said that the principle, enunciated in that case, that no function can be conferred that is incompatible with the proper discharge by the judiciary of its responsibility as an institution exercising judicial power, was equally applicable to a State court exercising invested jurisdiction under Ch III of the Constitution. He considered that requiring the Court to order imprisonment although Mr Kable had not been found guilty of any criminal offence, and was being detained by reason of the Court’s assessment of what he might do, was incompatible with the exercise of judicial power, undermining the independence of the judiciary (at 96 and 98).
Gaudron J compared the implied limit on State legislative power with the limitation on the Commonwealth legislative power established by R v Kirby; ex parteBoilermakers’ Society of Australia (1956) 94 CLR 245 and said of the implied limit on State legislative power (at 104):
“The limitation on State legislative power is more closely confined and relates to powers or functions imposed on a State court, rather than its judges in their capacity as individuals, and is concerned with powers or functions that are repugnant to or incompatible with the exercise of the judicial power of the Commonwealth.
Although the limitation is one relating to the conferral of powers on courts, rather than on judges in their capacity as individuals, it is, nevertheless, one that is closely related to the limitation on Commonwealth power to confer functions on judges of this and other federal courts in their capacity as individuals. In both cases the limitation derives from the necessity to ensure the integrity of the judicial process and the integrity of the courts specified in s 71 of the Constitution.”

McHugh J referred to the importance of State courts to the scheme of Ch III under which State courts may be invested with federal jurisdiction, and to the necessity for those courts to be and to be perceived to be independent of the legislature and executive government. He said (at 116):
“One of the basic principles which underlie Ch III and to which it gives effect is that the judges of the federal courts must be, and must be perceived to be, independent of the legislature and the executive government. Given the central role and the status that Ch III gives to State courts invested with federal jurisdiction, it necessarily follows that those courts must also be, and be perceived to be, independent of the legislature and executive government in the exercise of federal jurisdiction. Public confidence in the impartial exercise of federal judicial power would soon be lost if federal or State courts exercising federal jurisdiction were not, or were not perceived to be, independent of the legislature or the executive government.” (Footnote omitted).
He went on to say (at 117):
“While nothing in Ch III prevents a State from conferring non-judicial functions on a State Supreme Court in respect of non-federal matters, those non-judicial functions cannot be of a nature that might lead an ordinary reasonable member of the public to conclude that the Court was not independent of the executive government of the State. …
Furthermore, although nothing in Ch III prevents a State from conferring executive government functions on a State court judge as persona designata, if the appointment of a judge as persona designata gave the appearance that the court as an institution was not independent of the executive government of the State, it would be invalid.”
He explained his decision that the legislation in question, which provided for preventive detention, was invalid in the follow way (at 124):
“At the time of its enactment, ordinary reasonable members of the public might reasonably have seen the Act as making the Supreme Court a party to and responsible for implementing the political decision of the executive government that the appellant should be imprisoned without the benefit of the ordinary processes of law. Any person who reached that conclusion could justifiably draw the inference that the Supreme Court was an instrument of executive government policy. That being so, public confidence in the impartial administration of the judicial functions of the Supreme Court must inevitably be impaired. The Act therefore infringed Ch III of the Constitution and was and is invalid.”
Gummow J said that he generally accepted the submissions by the appellant which he summarised (at 127-128) as follows:
“The final steps in the appellant’s submissions are as follows. First, the structure of the Australian Constitution, especially Ch III, does not permit of an Australian judiciary exercising the judicial power of the Commonwealth but divided into two grades, an inferior grade, namely the possessors of invested federal jurisdiction who are subject to the imposition and receipt of incompatible functions under State law, and a superior grade, comprising this Court and other federal courts which are not subject to the imposition and receipt of such functions whether pursuant to Commonwealth or State law. The second step is that the Constitution, and especially Ch III, assumes and requires, at least as regards the Supreme Courts of the States, an institutional integrity of the State court structure which may not be undermined by the reposition in them of authorities and powers of the nature of those in the Act.”
At the conclusion of this paragraph he is referring to the fact that the legislation required the Supreme Court to make an order for preventive detention, and the manner in which the provisions operated. He described the legislation and its operation as damaging the appearance that the court was impartial in administering the law, and said that the procedure prescribed was “repugnant to judicial process”: (at 133-134).
The judgments in Kable establish a principle that the Supreme Courts, and probably other State courts in which federal jurisdiction is vested, may not be given functions by a State Parliament which are incompatible with the integrity, independence and impartiality required of a court which exercises invested federal jurisdiction under Ch III of the Constitution. This Court should treat those statements of principle as decisive even if, in view of the qualification in the reasons of Toohey J, Kable does not state an authoritative position in relation to the District Court in the present case. Kable was treated as authoritatively establishing a principle along the lines stated by me in Silbert v Director of Public Prosecutions (WA) [2002] WASCA 12; (2002) 25 WAR 330, in Attorney-General (Qld) v Fardon [2003] QCA 416 and in Re Criminal Proceeds Confiscation Act 2002 (Qld) [2003] QCA 249.
The principle stated in Kable has a potentially wide scope. It raises the question, what powers or functions or processes or manner of proceeding would be repugnant to or incompatible with the exercise of the judicial power of the Commonwealth, or, to be more specific, would impair the perception that the court in question was independent of the legislature and executive government or would create the impression that the judiciary had become an arm of the executive (Gaudron J at 104, McHugh J at 116 and Gummow J at 133-134).
In the present case the question is whether, when the District Court applied s 32(3) of the CSA and Schedule 2 of the Regulations to the trial of Mr Granger, it was caused to exercise its judicial power in determining whether Mr Granger was guilty of the offence charged, in a manner repugnant to or incompatible with the exercise of the judicial power of the Commonwealth, or in a manner that would cause the court to be seen as not independent of the legislature and executive, the District Court being a court in which the judicial power of the Commonwealth was invested although that jurisdiction was not enlivened in the case in question.
As I have mentioned, Mr Schapel’s submission was elaborated in a variety of ways, relying on different aspects of s 32(3) and of Schedule 2. He submits that these provisions are a usurpation of judicial power. They are said to require the court to convict an accused person on a basis that is or may be false, in that by virtue of the presumption the Court was required to convict Mr Granger on the basis that he had cannabis in his possession for the purpose of sale, although it was a possibility that that was not his purpose. In a sense, he argued, the Court was required to convict on facts invented by Parliament, once the presumption was brought into play by the application of Schedule 2. The Court would be required to impose a heavy penalty, and probably imprisonment, even though it was not satisfied beyond reasonable doubt of Mr Granger’s guilt. This made the Court appear to be the instrument of the executive government, by requiring it to convict on a false or deemed basis.
Mr Schapel also argued that s 32(3) required the Court to act in a manner inconsistent with the essential and accepted character of a court. The Court was required to deny Mr Granger a fair trial, because in respect of the element of intention it was required to ignore the presumption of innocence and to disregard the principle that Mr Granger was entitled to the benefit of a reasonable doubt in respect of each element of the offence. In this respect the Court was required to proceed in a manner that was repugnant to and inconsistent with traditional concepts associated with the administration of the criminal law in the exercise of the judicial power of the Commonwealth.
Mr Schapel further argued that the presumption, by virtue of the fact that Schedule 2 prescribed an amount as low as 100 grams, was neither reasonable nor rational, and that if the use of a presumption of guilt of an element of an offence was permissible at all, it was permissible only when there was a reasonable or rational basis for that presumption.
In the circumstances, it is convenient to approach the issue presented by the case with a slightly different focus from the principle stated in Kable.
In Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 the High Court was concerned with the validity of provisions of the Crimes Act 1914 (Cth). The provisions dealt with operations carried out to obtain evidence that might lead to the prosecution of a person for an offence against the Customs Act. The relevant provision provided that in determining whether evidence should be admitted that narcotic goods were imported into Australia in contravention of the Customs Act, be the fact that a law enforcement officer committed an offence in importing the narcotic goods was to be disregarded in certain specified circumstances. They were, broadly, if the offence took place in the course of a “controlled operation”. Thus, the provision had a direct effect on the power of the Court to exclude evidence in the exercise of its discretion grounded on public policy. In considering the validity of the provision, the members of the Court dealt in some detail with the circumstances in which Commonwealth legislation, affecting the conduct of a criminal trial so affected the judicial function of determining guilt that it amounted to an impermissible usurpation of or infringement of judicial power. That is not the same issue as arose in Kable. But there are close similarities between the limit that Ch III of the Constitution places on the power of the Commonwealth Parliament to legislate in respect of criminal procedure in courts established under Chapter III, and on the limit imposed on State Parliaments and identified in Kable. As the High Court said in Bachrach Pty Ltd v The State of Queensland [1998] HCA 54; (1998) 195 CLR 547 at [14]:
“However, Kable took as a starting point the principles applicable to courts created by the Parliament under s 71 and to the exercise by them of the judicial power of the Commonwealth under Ch III. If the law in question here had been a law of the Commonwealth and it would not have offended those principles, then an occasion for the application of Kable does not arise. The submissions for the first and third defendants and for the interveners correctly proceeded on that footing.”
The majority took the same approach in Silbert v Director of Public Prosecutions (WA) [2004] HCA 9, refusing special leave to appeal against the decision in Silbert (above). In view of the relevance of the issues raised in Nicholas to the issues raised in the present case, it is convenient to consider Mr Schapel’s submissions in light of the judgments in Nicholas and to consider whether s 32(3) of the CSA and Schedule 2 would be valid if they were a law of the Commonwealth applicable to a court established by the Parliament under Chapter III. An affirmative answer means that the principle stated in Kable is not breached.
I have already summarised the issue that arose in Nicholas. The issue was whether the legislative direction to the court required it, when exercising judicial power, to do so in a manner that was inconsistent with the nature of judicial power.
But before coming to the reasons in Nicholas it is desirable to emphasise, as a starting point, that the present case concerns the District Court exercising its judicial function of determining whether Mr Granger was guilty of a criminal offence. It was performing a function that lies at the heart of judicial power. In Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27, in a passage often referred to with approval, Brennan, Deane and Dawson JJ said:
“There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth.”
Immediately before this they had said, referring to the legislative power of the Commonwealth and its impact on the judicial power:
“Nor do those grants of legislative power extend to the making of a law which requires or authorizes the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power.” (Footnotes omitted).
As the Court said in Bachrach at [17]-[18]:
“The authorities recently considered in Nicholas v The Queen show that there may be circumstances in which legislation will be found invalid upon the ground that it involves a usurpation of or interference with judicial power, or an impermissible interference with the exercise of judicial power. Liyanage v The Queen is an example. However, as Mason J pointed out in R v Humby; Ex parte Rooney the circumstance that a statute affects rights in issue in pending litigation does not necessarily involve an invasion of judicial power.
In this regard, the distinction between powers that are exclusively judicial and those that take their character from the body or tribunal on which they are conferred is important. A statute affecting litigation with respect to the guilt of a particular individual or group of individuals charged with criminal offences will involve quite different considerations from one affecting litigation as to rights which the Parliament may choose to have determined either by a judicial or non-judicial body.” (Footnotes omitted).
In Nicholas, the legislation in question was held valid by the majority, McHugh and Kirby JJ dissenting.
Brennan J stated the relevant principle as follows: at [19]-[20]
“As the rights and liabilities prescribed by a court’s judgment (including a liability to undergo punishment in accordance with a sentence imposed by a criminal court) declare or are founded on the antecedent rights and liabilities of the parties (including a right or liability to the exercise of a judicial discretion), the court must find the facts and apply the law which, at the relevant time, prescribe those antecedent rights and liabilities. The finding of facts is a curial determination of the actual existence or occurrence of the acts, matters and things on which criminal liability for the offence charged depends. It is a function which, on the trial on indictment of a person charged with an offence against a law of the Commonwealth, is reposed in a jury. In finding facts, the jury is restricted to the evidence laid before them supplemented by facts commonly known that need no proof.
Some characteristics of a court flow from a consideration of this function, including the duty to act and to be seen to be acting impartially. We are not concerned with these characteristics in the present case, except in so far as the duty to act impartially is inconsistent with the acceptance of instructions from the legislature to find or not to find a fact or otherwise to exercise judicial power in a particular way. A law that purports to direct the manner in which judicial power should be exercised is constitutionally invalid. However, a law which merely prescribes a court’s practice or procedure does not direct the exercise of the judicial power in finding facts, applying law or exercising an available discretion.” (Footnotes omitted).
However, he qualified these propositions at [23]:
“The practice and procedure of a court may be prescribed by the court in exercise of its implied power to do what is necessary for the exercise of its jurisdiction but subject to overriding legislative provision governing that practice or procedure. The rules of evidence have traditionally been recognised as being an appropriate subject of statutory prescription. A law prescribing a rule of evidence does not impair the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order which is the end and purpose of the exercise of judicial power.” (Footnote omitted).
It is convenient to refer here to the High Court decision in Williamson v Ah On (1926) 39 CLR 95, which has also been regularly referred to with approval. That was a case in which, appropriate averments being made by the prosecutor, the burden was cast by statute on a person charged with being a prohibited immigrant to prove that he was not an immigrant and that he had not evaded an officer of Customs. The case may be distinguishable, because it is concerned with the proof of facts bringing the legislation in question within constitutional power. However, in a passage referred to with apparent approval by Brennan CJ, and often referred to with approval on other occasions, Isaacs J said at 108:
“It is one thing to say, for instance, in an Act of Parliament, that a man found in possession of stolen goods shall be conclusively deemed to have stolen them, and quite another to say that he shall be deemed to have stolen them unless he personally proves that he got them honestly. The first is a parliamentary arbitrary creation of a new offence of theft, leaving no room for judicial inquiry as to the ordinary offence; the second is only an evidentiary section, altering the burden of proof in the ordinary case of theft, and requiring certain pre-appointed evidence to fit the special circumstances in the interests of justice, because the accused best knows the facts, and leaving the Court with these provisions to examine the facts and determine the matter.”
Having referred to this passage, Brennan CJ said at [24]
“The reversal of an onus of proof affects the manner in which a court approaches the finding of facts but is not open to constitutional objection provided it prescribes a reasonable approach to the assessment of the kind of evidence to which relates.”
Toohey J approached the issue in the following manner, at [53]:
“It is a considerable step to reason that legislation may not affect the way in which judicial power is exercised. It is an even bigger step to contend that the legislature may not provide that evidence possessing a certain character must be treated in a certain way or that evidence of a particular character must be rejected or, for that mater, admitted. It might be necessary, in a particular situation, to look closely at the consequences of rejecting or admitting the evidence. Those consequences may, for instance, be so inimical to the idea of a fair trial that a question arises as to the power of the legislature, at any rate where the judicial power of the Commonwealth is involved.”
He added at [55]:
“Evidence has traditionally been a subject for legislative regulation. The Evidence Act 1995 (Cth) is a recent illustration. To take an example closer to home, averment provisions have been upheld as within constitutional power.” (Footnote omitted).
Gaudron J stated the applicable principle in a more detailed fashion than did the other members of the Court. She said at [74]:
“In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.”

McHugh J dissented. He said at [111]-[112]:
“If the doctrine of the separation of powers is to be effective, the exercise of judicial power needs to be more than separate from the exercise of legislative and executive power. To be fully effective, it must also be free of legislative or executive interference in its exercise. As a result, legislation that is properly characterised as an interference with or infringement of judicial power, as well as legislation that purports to usurp judicial power, contravenes the Constitution’s mandate of a separation of judicial from legislative and executive power …
The distinction between an infringement and an usurpation of judicial power is of little, if any, practical importance but, speaking generally, an infringement occurs when the legislature has interfered with the exercise of judicial power by the courts and a usurpation occurs when the legislature has exercised judicial power on its own behalf. Legislation that removes from the courts their exclusive function “of the adjudgment and punishment of criminal guilt under a law of the Commonwealth” will be invalidated as a usurpation of judicial power.” (Footnote omitted).
Although he was of the view that the legislation infringed the principle stated by him, he also accepted that Parliament can enact legislation governing criminal procedure. Referring to the provision in question he said at [123]:
“Nor is s 15X comparable with those enactments regulating the admission of evidence or governing the practice and procedures of courts exercising federal jurisdiction. It is clear that Parliament can enact evidentiary rules relating to proof of the offences that it creates. No constitutional reason exists to prevent the Parliament from altering the common law rules of evidence or the rules of practice and procedure enshrined in Rules of Court.” (Footnote omitted).
He went on to refer with approval to the remarks of Isaacs J that I set out above.
Gummow J identified the issue as follows at [145]:
“The essential question concerns the limitation imposed by s 15X upon the discretion which the trial court otherwise would enjoy to exclude evidence that the heroin in question was imported into Australia in contravention of the Customs Act. Is this such an interference with the governance of the trial and a distortion of its predominant characteristics as to involve the trial court in the determination of the criminal guilt of the accused otherwise than by the exercise of the judicial power of the Commonwealth?”
He referred to a “lengthy history” of Commonwealth laws creating criminal offences which reverse the traditional onus of proof: at [152]. He referred to a number of decisions including Williamson v Ah On. In that context it may be significant that he added at [156] the following observations:
“Nor does s 15X deem to exist, or to have been proved to the satisfaction of the tribunal of fact, any ultimate fact, being an element of the offences with which the accused is charged. A law of that nature, albeit procedural in form, might well usurp the constitutionally mandated exercise of the judicial power for the determination of criminal guilt. Section 15X is quite different in form and operation.” (Footnote omitted).
I am satisfied, reading his remarks in context, that Gummow J was there drawing a distinction between a legislative provision that deems a matter to exist or to be proved, as distinct from the legislative provision that creates a rebuttable presumption.
Kirby J dissented. He appears to me to apply the same principles as the other members of the court although he considered the legislation in question invalid. At [201] he said:
“The Parliament has undoubted power to make and amend rules of evidence to be applied in the exercise of the judicial power.” (Footnote omitted).
Hayne J also proceeded on the same basis of principle as the majority, and relevantly to the present point he said, at [252]:
“I have said that the distinction between legislation dealing only with questions of evidence or procedure and legislation dealing with questions of guilt or innocence will not always be easy to draw. It is possible to imagine changes to evidence or procedure which would be so radical and so pointed in their application to identified or identifiable cases then pending in the courts that they could be seen, in substance, to deal with ultimate issues of guilt or innocence.
It can be seen from this summary of the judgments in Nicholas that there is a line to be drawn in relation to legislation that affects matters of evidence and procedure in the course of a criminal trial, but there can be no doubt that the Commonwealth Parliament can enact such legislation. There are a number of references in the reasons, with apparent approval, to the power of Parliament to impose a burden of proof on an accused person, although as Hayne J points out, any such provision will require careful consideration.
Reference should also be made to the decision of the High Court in Milicevic v Campbell (1975) 132 CLR 307. That was a case in which the High Court considered Commonwealth legislation that provided that a person was guilty of an offence if the person was in possession of a prohibited import, reasonably suspected of having been imported into Australia in contravention of the Customs Act “without reasonable excuse (proof whereof shall lie upon him)”. Although the submissions in that case were directed to the question of whether the law was within power, bearing in mind that the goods in question might not in fact have been imported, there is nothing in the decision of the Court that raises any doubt about the validity of the provision in so far as it cast the burden of proof on an accused person. In particular, Gibbs J said at 316:
“The parliament may, when legislating with respect to a subject within the ambit of its powers, validly enact laws prescribing the rules of evidence and procedure to be observed in any legal proceedings, whether criminal or civil, arising in relation to that subject matter and may in particular cast the onus of proof upon either party to those proceedings:….”
This decision also was referred to with approval by members of the Court in Nicholas.
I return now to the question of whether s 32(3) of the CSA and Schedule 2 are valid, bearing in mind these statements of principle.
It is relevant, as Gummow J said in Nicholas, that there is a lengthy history of Commonwealth and State legislation casting on an accused person the burden of proof in relation to an element or elements of serious criminal offences. There can be no doubt that, within limits, the Commonwealth Parliament can enact laws affecting the practice and procedure of courts trying criminal cases, and affecting the application of the rules of evidence. In this area in particular it is important to bear in mind the cautionary observations of Brennan CJ in Nicholas at [37]:
“To suggest that the statutory will of the Parliament, expressed in s 15X, is to be held invalid because its application would impair the integrity of the court’s processes or bring the administration of criminal justice into disrepute is, in my respectful opinion, to misconceive both the duty of a court and the factors which contribute to public confidence in the administration of criminal justice by the courts. It is for the Parliament to prescribe the law to be applied by a court and, if the law is otherwise valid, the court’s opinion as to the justice, propriety or utility of the law is immaterial. Integrity is the fidelity to legal duty, not a refusal to accept as binding a law which the court takes to be contrary to its opinion as to the proper balance to be struck between competing interests. To hold that a court’s opinion as to the effect of a law on the public perception of the court is a criterion of the constitutional validity of the law, would be to assert an uncontrolled and uncontrollable power of judicial veto over the exercise of legislative power. It would elevate the court’s opinion about its own repute to the level of a constitutional imperative. It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts’ repute as the administrator of criminal justice.
I return to s 32(3) of the CSA. The presumption that it creates is rebuttable. It does not deem the purpose in question to be proved. It remains for the trier of fact, bearing in mind the presumption, to decide whether the accused has the drug or substance in his possession for the purpose of sale or supply. The trier of fact is at liberty to take into account all relevant material in deciding that question. The presumption is one of a kind that is well known in the criminal law, although that is not decisive. It is a presumption of a general kind that has been accepted as valid in decisions of the High Court, although the validity of such a presumption has also been accepted in general terms, and with the cautionary note that the operation of the presumption must be considered.
In these circumstances I do not accept that s 32(3) of the CSA usurps the judicial function. The determination of guilt, as a matter of form and as a matter of substance, is left to the court. It cannot be said that the court has been made the instrument of Parliament for the purpose of recording a verdict of guilt determined by Parliament, or an instrument of the executive government through the prosecutor. Nor do I consider that the legislation can be regarded as an impermissible interference with or infringement of judicial power. The reasons for so concluding are the same.
Section 32(3) does not require the court to act other than impartially. The trier of fact still has the task of finding the facts. The sub-section does not direct the court, as a matter of substance, as to the manner in which it must decide the case. It does not prevent Mr Granger putting a case in defence.
It cannot be said that a court which applies the presumption in s 32(3) is required to perform a non-judicial function. It is going too far to suggest that the creation of the presumption in s 32(3) so transforms the function being performed by the court. That is a point that would be relevant if s 32(3) were a Commonwealth law, although it is not directly relevant under the principle stated in Kable.
I do not agree that a trial in which the prosecution invokes s 32(3) of the CSA is not a fair trial, or is not a trial conducted in accordance with the fundamental legal concept of a fair trial. There is an element of impression here. But one must be careful not to entrench unthinkingly the common law, or the current state of the law (both common law and statutory), or to prevent a change in the law. It is fair to say that in Australia the concept of a fair trial, or one conducted in accordance with the accepted principles of judicial process, is one in which the prosecution must adduce evidence of facts on which the trier of fact determines the issue of innocence or guilt, the burden being on the prosecution to establish guilt beyond reasonable doubt. But, in view of the practices of Australian Parliaments, and the procedures of Australian courts, it is going too far to say that the trial ceases to be fair for relevant purposes, or to be conducted in accordance with accepted principles of the judicial process, if the prosecution is able to call in aid a rebuttable presumption that will establish a significant element or elements of an offence, unless the accused person displaces that presumption on the balance of probabilities. That is not to deny that, in a given case, a statutory presumption might fall foul of the principles identified by me. One must recognise that in this respect Australian constitutional law is developing and might yet be developed so as to impose on the legislative competence of Parliament a greater restriction than has previously been recognised. But in the light of current authority, I consider that this Court is bound to conclude that a trial conducted in accordance with s 32(3) of the CSA is a fair trial.
The presumption of innocence, and the principle that an accused person must have the benefit of a reasonable doubt, are important and valuable features of our system of criminal law. But at this stage it cannot be said that the presumption of innocence in respect of every element of an offence is an essential element of a fair trial. There is nothing in Dietrich v The Queen (1997) 177 CLR 292 to the contrary. It is not open to this Court to hold that it is incompatible with a fair trial to deprive an accused of the benefit of a reasonable doubt, and of the benefit of the presumption of innocence, in respect of an element or elements of an offence.
As I have already said, decisions in the United Kingdom, Canada and Hong Kong on which Mr Schapel relied are explicable on the basis that they reflect the presence of a constitutionally entrenched right to a fair trial or a constitutionally entrenched presumption of innocence.
It should also be remembered that it is for Parliament to create offences and to define their elements. Many offences of strict liability have been created. It must also be within the power of Parliament to create offences that have no, or a limited, mental element. Bearing that in mind, one must be cautious before holding that creating a presumption in aid of proof of the mental element of an offence is beyond power. Parliament might achieve much the same result, or a more stringent one, by re‑defining the elements of the offence in question to eliminate the mental element.
For those reasons I conclude that s 32(3) of the CSA would be valid if it were a law of the Commonwealth. I have considered separately whether s 32(3) offends against the principle stated in Kable. In my opinion it does not. There is nothing in s 32(3) that requires a court to act in a manner inconsistent with the requirement of independence, impartiality and fairness that are essential to the exercise of judicial power.
There remains the question of whether the presumption that it authorises is given an unreasonable or irrational operation by Schedule 2 of the Regulations, by virtue of that Schedule prescribing an amount as low as 100 grams as the prescribed amount. In considering this point it is relevant to bear in mind the legislative provisions to which I referred earlier, relating to the possession of and prosecution for the possession of cannabis and relating to prosecutions for the production of cannabis plants. Mr Schapel’s submission is based on the observation by Brennan CJ in Nicholas at [24] that the reversal of an onus of proof is permissible if it “prescribes a reasonable approach to the assessment of the kind of evidence to which it relates.” In this context it is necessary to bear in mind also the cautionary observations by Brennan CJ about the court substituting its opinion as to the wisdom of legislation for that of Parliament. Whether the criterion of validity for the reversal of an onus of proof identified by Brennan CJ reflects a majority view of the High Court need not be determined. In my view it is sufficient if it can be said of the legislation that it could reasonably be regarded as prescribing a reasonable approach to the evidence in question. That appropriately reflects the deference which the court should give to the decision of Parliament. Experience in the criminal courts demonstrates that the selling of cannabis is a prevalent offence, that it is often sold in relatively small quantities (less than 100 grams) and that persons who are “street dealing” in cannabis often carry relatively small amounts of cannabis with them at any one time. Experience also indicates that there is considerable casual or opportunistic selling and supply of cannabis, and other drugs, by persons who are in possession of relatively small amounts. It is true that a person in possession of 100 grams of cannabis might well intend the whole of that amount for that person’s own use. It would not take a frequent user long to consume that amount. It could not be said that an amount of 100 grams, having regard to patterns of consumption of cannabis, is an amount that necessarily indicates a purpose to sell or supply. Proof of purpose is likely to be particularly difficult when the quantity is small. But it was open to Parliament to make the judgment that having regard to patterns of trading in cannabis, the point at which the presumption was invoked should be set at a relatively low level. It should not be overlooked that, the lower the amount of cannabis in question, the easier it should be for an accused person to rebut the statutory presumption. I recognise that the legislative pattern in relation to possession for sale and “simple cannabis offences” is a tangled one, but it would be going too far to insist that Parliament must avoid any such tangles. It is of the essence of a presumption, based on a quantity identified by weight, that it will have an arbitrary operation, in the sense that an amount as little as one gram will make the difference between the presumption applying and not applying. However, that could not be a reason to invalidate the presumption. That will be the case with any presumption based on weight.
For those reasons I would reject the challenge to the validity of s 32(3) of the CSA and to the validity of Schedule 2 of the Regulations.
The Judge’s finding of guilt
The Judge had to decide whether Mr Granger had satisfied her, on the balance of probabilities, that he did not have the cannabis for the purpose of sale to another person. That meant satisfying her, on the balance of probabilities, that he did not intend to sell, or did not contemplate selling, any of the cannabis. It was not enough to prove, for example, that he would have smoked some of it, or even much of it.
In this case, in view of the large amount of cannabis, there was no need to consider what would follow if Mr Granger had proved on the balance of probabilities that he would have himself consumed all of the cannabis but for an amount less than 100 grams, and that any intended or contemplated sale related to an amount of cannabis less than 100 grams.
Not surprisingly, the Judge considered whether Mr Granger was likely to have such a large quantity of cannabis for his own use, in light of his evidence about his use of cannabis. She also considered his financial circumstances, to determine whether they suggested, one way or the other, that he might be led to sell cannabis to maintain himself. She also acknowledged the absence of any evidence, in the form of the typical indicia of sale or the unexplained receipt of money, that Mr Granger had previously been engaged in selling cannabis.
Mr Granger’s case was that he smoked cannabis heavily, intended to smoke all of the cannabis, and had no financial need or reason to sell any of the cannabis. These were the propositions or bases that he put forward to discharge the burden of proof s 32(3) put on him.
The Judge’s reasons indicate that she was not persuaded of either of these propositions. Her reasons in paragraph [80] (above) reflect that conclusion.
The Judge’s comments at [72] and [73] (above), that it was possible that Mr Granger did not have the cannabis in his possession for the purpose of sale, might reflect the fact that proof that he had possession of the cannabis for the purpose of sale was aided by the presumption: Zampogna at [44]. The comments are not inconsistent with her conclusion, in the circumstances, and could reflect the fact that the prosecutor had not, as a matter of fact, proved beyond reasonable doubt that Mr Granger possessed the cannabis for the purpose of sale. That was why she was able to make the finding that he possessed the cannabis for the purpose of sale, while recognising that the matter found had not been actually proved beyond reasonable doubt. That is an inevitable consequence of the statutory use of a presumption.

But do the Judge’s comments, as Mr Schapel argues, indicate that the Judge did not reject the truth but Mr Granger’s evidence that he did not intend to sell any of the cannabis? What would be the significance of such a conclusion?
If the Judge found Mr Granger to be truthful, she could not have convicted him. If she found him to be truthful, she would have accepted his evidence that he did not intend to sell any of the cannabis, and intended to consume all of it himself. In those circumstances, Mr Granger would have discharged the burden that s 32(3) of the CSA imposed on him. He should have been acquitted.
If the Judge disbelieved Mr Granger’s evidence, she would not necessarily have convicted him, although from a practical point of view it is likely that she would. The disbelief of his evidence would simply leave the court without whatever that evidence might contribute. In that event the Judge would convict Mr Granger unless other evidence, not depending on his credit, satisfied the Judge that Mr Granger did not intend to sell the cannabis. In the present case, it was not really arguable that Mr Granger was able to discharge the burden cast on him by s 32(3) if his own evidence was rejected.
But if the Judge neither accepted nor definitely rejected Mr Granger’s evidence, and considered that his evidence might be truthful, could she properly have convicted Mr Granger? In those circumstances it would be wrong to reason that Mr Granger had not discharged the burden of satisfying the Judge on the balance of probabilities that he did not possess the cannabis for the purpose of sale. It would be wrong to reason that although he might be telling the truth, because the Judge was not satisfied that he was telling the truth, he had failed to satisfy the Judge of the required matter. A decision on Mr Granger’s credit was critical to the question of whether he had proved that he did not intend to sell any of the cannabis, and that decision had to be made before the Judge came to a conclusion whether Mr Granger had proved what he had to prove. The Judge was quite entitled to reject Mr Granger’s evidence about his intention having regard to the quantity of cannabis found in his possession, having regard to his financial circumstances or having regard to anything else the Judge thought relevant. But in the circumstances of this case, I consider that the Judge could not leave undetermined the credibility of Mr Granger’s assertion that he intended to sell none of the cannabis, and then proceed to a finding that Mr Granger had not shown on the balance of probabilities that he did not have the cannabis for the purpose sale, because she was unable to reach the conclusion that he was to be believed.
Accordingly, it is necessary to consider whether the Judge reasoned in this way. Mr Schapel points to the fact that the Judge made no express finding as to Mr Granger’s credit. He argues that she must have reasoned in the manner outlined above.
I do not agree. I have read her reasons closely. In the light of those reasons, I consider that her reasons at [80] and [81] reflect a decision by the Judge to reject Mr Granger’s evidence. I am satisfied that her comments at [72] and [73] are a comment on the legal effect of s 32(3) of the CSA, and not an acknowledgement that Mr Granger’s evidence might be truthful. It would have been better if the Judge had made an express finding on the point, but that is all that can be said.
Having regard to the significance of the issue raised, I would grant leave to appeal on proposed ground 7, but would reject this ground of appeal.
Sentence appeal
In the course of the sentencing submissions before the Judge, it was put to the Judge that she should sentence Mr Granger on the basis that he would have sold some of the cannabis as occasion arose, perhaps when he had a need for money. No doubt this submission was put in the context of Mr Granger’s evidence about his long term and heavy use of cannabis, evidence which there was no reason to reject. This submission was not contested by the prosecutor.
Mr White argued that the Judge had to make a finding as to the amount of cannabis which Mr Granger intended to sell. He referred to the fact that by s 32(5)B(a)(i) and s 32(5a)(b) of the CSA, the offence attracted a penalty of a fine not exceeding $500,000.00 and imprisonment for a term not exceeding 25 years, because “the quantity of the cannabis … involved in the commission of the offence equals or exceeds the amount prescribed in respect of cannabis…”, being 10 kilograms. The submission appeared to be that Mr Granger had been sentenced on this basis, but could not properly be sentenced on this basis unless the Judge found, as a matter of fact, that the quantity of cannabis that he intended to sell was greater than 10 kilograms.
I do not accept that submission. The maximum penalty for the offence is fixed by reference to the quantity of the cannabis “involved in the commission of the offence”. I consider that that relatively broad concept has been adopted by Parliament deliberately, as an intended reference to the cannabis the possession of which has given rise to the offence, as distinct from the amount of the cannabis which is intended to be sold. Just as the presumption under s 32(3) arises by reference to the amount of cannabis, so the penalty range is fixed by reference to the quantity of cannabis involved.
It is relevant to bear in mind that s 32(5)B(a) operates in relation to each of the offences created by s 32(1) of the CSA. It applies, for example, to the offence of producing a drug, taking part in the manufacture of a drug, selling a drug, and having a drug for the purpose of sale, supply or administration. It is not a provision aimed specifically at the offence of having a drug for the purpose of sale.
Accordingly, it was not necessary for the Judge to find that Mr Granger intended to sell 10 kilograms or more, before the Judge could determine the maximum penalty that was applicable.
In the circumstances of the case, it was necessary for the Judge to make a decision on the submission that was put by his counsel. The Judge did that, although, with respect, the finding is not as clear as it might be. The Judge said:
“I take into account, as far as it goes, that you maintain as a matter of fact, that you intended to use the cannabis you had for yourself, and that there were no signs of commercial enterprise in relation to the crop.”
This was not just a reference to the effect of the presumption under s 32(3). There would have been no point in the Judge making this remark, if she was rejecting the submission that was put on Mr Granger’s behalf. Indeed, bearing in mind the approach taken by the prosecutor during sentencing, it would not have been permissible for the Judge to reject the submission outright without some indication that she might do so. I am satisfied that the general tenor of the Judge’s sentencing remarks reflects an acceptance of the submissions put in mitigation, the theme of which was that Mr Granger was a heavy user of marijuana because of the state of his physical and mental health. The lenient sentence that the Judge imposed supports that conclusion. If most or much of the cannabis was to be sold, I would have expected a heavier penalty.
I turn now to the other matters raised in the appeal against sentence.
There are some significant features of the case for the purpose of sentencing.
First, Mr Granger was a long term user of cannabis. Second, he had significant physical and mental health problems. Third, he had a record of prior offences involving cannabis. Fourth, as recently as March 2002, for offences involving the possession and production of cannabis, he had been sentenced in the District Court to two years’ imprisonment, with a non parole period of 18 months, the sentence being suspended upon him entering into a bond to be of good behaviour for a period of three years. This was not the first suspended sentence that he had received. The sentence in March was imposed with a warning by the Judge that it was “one last chance”. Fifth, after that sentence was imposed, a group of friends rallied around to support Mr Granger, in an effort to help him find employment, and to cope with the difficulties that were causing him to offend. They are to be commended for this. Sixth, despite this the offences in question were detected in September 2002, only six months after the suspended sentence was imposed.
Mr White submits that the Judge failed to consider exercising the power conferred by s 58(3) of the Criminal Law (Sentencing) Act to refrain from revoking the order suspending the sentence. The Judge could have refrained from revoking the suspension if she was satisfied that there were “proper grounds” for excusing the failure to observe the bond to be of good behaviour.
The Judge gave no reasons for not exercising this power. It is preferable that judges do so, when the power is invoked, although usually quite brief reasons will suffice.
However, there is no reason to think that the Judge did not direct her mind to the point. It was the subject of submissions before her. I am satisfied that there were no grounds upon which she could properly have exercised the power. The offence was an offence of the same kind as that for which Mr Granger was given a suspended sentence, albeit a more serious offence, was committed not long after he entered into the bond, and the mitigating circumstances on which he relied are the same as those relied upon before the Judge imposed the suspended sentence. The fact that friends had rallied around to help him after the suspended sentence was imposed could not be regarded as something that excused the breach of the bond. It is important that offenders understand, and that the community sees, that ordinarily the consequence of a breach of a bond in such circumstances will be the revocation of a suspended sentence.
Mr White also argued that the Judge erred in failing to consider whether to exercise the power conferred by s 58(4)(a) of the Criminal or (Sentencing) Act, which enabled the Judge to reduce the term of the suspended sentence if there were “special circumstances” justifying that course of action. It is not clear to me that this possibility was raised in the course of sentencing submissions. That might be why the Judge makes no reference to it. Although the power is a wide one, it is not one to be exercised as a matter of course. As Jacobs J said in R v Buckman (1988) 47 SASR 303 at 307, this provision looks:
“... to some significant change of circumstances since the prisoner was sentenced, which had they existed at that time might have justified a reduced sentence.”
As he said, relevant circumstances will usually be personal factors of a kind that may dispose a court to leniency. My view is that the matters to which I have already referred provided no basis at all for an order reducing the term of the suspended sentence. If anything, the fact that Mr Granger offended as soon as he did, and despite the support of his friends, suggests that considerations of deterrence outweighed mitigating circumstances personal to Mr Granger. There is no basis upon which the Judge could properly have reduced the term of the suspended sentence. For what it is worth, I add that there were no convincing signs of rehabilitation at the time when the later offences were committed.
The sentence that the Judge imposed for the offences before her was a lenient one. So was the non‑parole period. The Judge did not overlook any relevant matter. I reject the submission that Mr Granger’s mental condition was such that considerations of deterrence should be given less weight than they otherwise would have been given.
The final matter argued on the appeal against sentence was that the Judge failed to have proper regard to s 10(1)(ka) of the Criminal Law (Sentencing) Act, which includes among the matters relevant to sentence the following:
“... if a forfeiture of property … is, or is to be imposed, as a result of the commission of the offence – the nature and extent of the forfeiture…”
As far as I can tell this was not raised in sentencing submissions before Her Honour. It is raised by the grounds of appeal on which Mr Granger was given leave to appeal against sentence. The only reference to the matter that I have been able to find in the District Court is a passing reference to a possible forfeiture of Mr Granger’s home in a report provided by a psychiatrist that was put before Her Honour.
Counsel for the Director informed this Court that a restraining order under the Criminal Assets Confiscation Act 1996 (SA) had been made in respect of the property at which the offences were committed, being Mr Granger’s home. For the purposes of that Act Mr Granger has been convicted of a “serious drug offence”, and accordingly that restraining order will be automatically converted into a forfeiture order, in the circumstances, six months after Mr Granger’s rights of appeal are exhausted: s 15(5)(d). Counsel for the Director argued that Mr Granger could avoid forfeiture by arguing, under s 15(2) of the Act, that the restraining order should not continue in force. That possibility was open to Mr Granger because the restraining order was made ex parte, and under this provision the owner of property the subject of a restraining order must be given “a reasonable opportunity to be heard on the question whether the order should continue in force”. Mr Hinton, counsel for the Director, submitted that in Director of Public Prosecutions v Alexander [2003] SASC 340; (2003) 86 SASR 577 the Full Court accepted that, on such an application by Mr Granger, the Court, in deciding whether to continue the ex parte order in force, could take into account the consequences of a forfeiture order, the impact on Mr Granger of that order, and the question of whether the forfeiture of the property would be disproportionate to the nature and extent of his criminality. The matter was not argued at any length before us, and not at all before the District Court. It may be that Mr Hinton is correct, but I must say that it is not clear that the members of the Court in Alexander were directing their mind to this point. If Mr Hinton’s submission is not correct, then forfeiture will inevitably occur. It is probably the case, although this was not argued before us, that the sentencing Judge could have had regard to the possibility of a forfeiture order, even though forfeiture is automatic if the restraining order stands: R v Carpentieri [2001] SASC 420; (2001) 81 SASR 164.
There is a real risk that the property will be forfeited, although I am not in a position to say that it will be forfeited. The consequence of forfeiture is likely to be significant for Mr Granger, although once again this Court has limited information about that. The issue was not raised at all before the sentencing Judge, and so it was not explored at all before her.
I consider that it would not be appropriate to allow an appeal against sentence, by reference to a matter that was not raised at all before the sentencing Judge, and which is attended by so much uncertainty on matters of law and fact.
I would dismiss the appeal against sentence.
PERRY J In my opinion, the appeals against conviction and sentence should be dismissed. In reaching that view, I am in substantial agreement with the reasons published by the Chief Justice.
I agree that s 32(3) of the Controlled Substances Act 1984 does not usurp the judicial function so as to offend the principles which find expression in the decision of the High Court in Kable.[1]
[1] (1996) 189 CLR 51.
Until now, the trend of judicial decisions in Australia has been to uphold the validity of statutory provisions which provide for presumptions, albeit rebuttable, which operate to prove an element or elements of an offence.[2]
[2] See, for example, Reg and Attorney-General (Cth) v Associated Northern Collieries and Ors (1911) 14 CLR 387 at 404, The Commonwealth and Anor v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1 at 12 and 17, Actors and Announcers Equity Association v Fontana Films Pty Ltd [1981-1982] 150 CLR 169 at 213, Williamson v Ah On (1926) 39 CLR 95; Milicevic v Campbell (1975) 132 CLR 307.
However, the time may well be approaching when the question deserves to be considered afresh.[3]
[3] See the article Does Chapter 111 of the Constitution protect substantive as well as procedural rights?, Justice McHugh (2001) 21 Australian Bar Review 235 at 244:
“If the presumption of innocence is a necessary concomitant of a fair trial, as human rights instruments indicate, it must be debateable whether the Parliament can try a person for a serious criminal offence and put any onus of proof on that person.”
While it is true, as the Chief Justice points out, that decisions such as R v Oakes,[4] R v Lambert,[5] and Attorney-General (Hong Kong) v Lee Kwong-Kut[6] were reached against the backdrop of provisions in Bills of Rights and Conventions, it does not follow that such decisions are not relevant to the development of the common law in Australia.
[4] (1986) 26 DLR (4^th) 200.
[5] [2002] 2 AC 545.
[6] [1993] AC 951.
It has long been recognised that international instruments, particularly those dealing with human rights, may legitimately influence the development of the common law in Australia.[7]
[7] See, for example, Jago v District Court of New South Wales (1988) 12 NSWLR 558 per Kirby J at 569 and the oft-cited dictum of Brennan J in Mabo v Queensland(No 2) (1992) 175 CLR 1 at 42-43. See also Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 499.
It follows that decisions of the courts of other common law jurisdictions, which may in turn be influenced by such instruments, should nonetheless still be regarded by Australian courts as providing a valuable guide to the development of the common law in this country.
It must be accepted, however, that the principle of proportionality, such as is expressly provided for in the Canadian Charter of Rights and Freedoms,[8] and by implication in the Human Rights Act 1988 (UK), may operate to uphold the validity of provisions of the kind now in question, even where there is an express constitutional entrenchment of the requirement of proof of criminal liability beyond reasonable doubt.
[8] See Section 1 of the Charter:
“The [Charter] guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
In R v Lambert (supra) Lord Steyn discussed the principle of proportionality in these terms:[9]
“... in a constitutional democracy limited inroads on the presumption of innocence may be justified. The approach to be adopted was stated by the European Court of Human Rights in Salabiaku v France:[10]
‘Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the contracting states to remain within certain limits in this respect as regards crimina law ... Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.’
This test depends upon the circumstances of the individual case. It follows that a legislative interference with the presumption of innocence requires justification and must not be greater than is necessary. The principle of proportionality must be observed.” (emphasis added)
[9] [2002] 2 AC at 570.
[10] (1988) 13 EHRR 379, 388, para 28.
The actual decision of the House of Lords in Reg v Lambert (supra)[11] suggests that even with the assistance of constitutionally entrenched human rights norms giving expression to the presumption of innocence, the development of the common law still has some distance to travel, before reaching the position contended for by the appellant in this case.
[11] See also the earlier decision of the Privy Council in Ong Ah Chuan v Public Prosecutor [1981] AC 648.

Given the present state of authority in Australia, it is not yet open to an intermediate appellate court to make that journey.
I agree with the orders proposed by the Chief Justice.
MULLIGHAN J I agree with the conclusions of Doyle CJ as to all matters raised on this appeal. There are only two matters about which I make some observations.
In his reasons for judgment Doyle CJ has set out the circumstances of the appellant’s criminal conduct and the observations and conclusions of the learned Trial Judge in reaching her verdict of guilty of possession for sale. I have been troubled by the way in which the learned Trial Judge has expressed her conclusions.
This is a case where there was no dispute about the objective facts. The appellant was growing three cannabis plants in separate pots at his house using hydroponic equipment. The amount of cannabis in his possession at that time was 17 kilograms. Also, there was no dispute that he was a heavy user of cannabis. He claimed to suffer significant depression. He also suffered pain following injuries sustained in a motor accident and claimed that he used cannabis to relieve symptoms of that illness.
The evidence before the learned Trial Judge established each element of the offence apart from the purpose of the possession. The quantity of the drug in his possession activated the presumption. The only issue before the learned Trial Judge was whether the appellant had rebutted that presumption.
The appellant gave evidence about all matters relevant to this question as well as the circumstances of his growing the plants. He told the learned Trial Judge of the level of his consumption of cannabis. The learned Trial Judge calculated that if this evidence was correct, the amount of cannabis in his possession would have lasted for over five months if he was in employment and only able to consume the drug outside working hours.
Whether the appellant was able to rebut the presumption depended upon whether his evidence that he possessed the drug for his own use was accepted on the balance of probabilities. There was no other evidence which had any bearing on that question. There were no items of paraphernalia of drug dealing at his house such as weighing scales or bags commonly found in the dealing of drugs. However, I expect that it is common not to find such items where a grower is merely supplying in bulk. There was no evidence of a large amount of cash in his house or of deposits of money in a bank account, which did not have an innocent explanation.
The learned Trial Judge did not make any finding about the credibility of the appellant. As the Chief Justice has mentioned, the learned Judge said:
“On the evidence, it is possible that the accused did not have cannabis in his possession for the purpose of sale. However, it is for the accused to establish on the balance of probabilities, that is, that it is more likely than not that he did not have cannabis in his possession for the purpose of the sale of that substance to another person.”
What has troubled me is what the learned Trial Judge meant when she said that it is possible that the appellant did not have the drug in his possession for sale, particularly in the absence of any finding as to his credibility. As his evidence was the only evidence that he did not have the drug for that purpose, if his evidence was accepted, then the presumption would be rebutted.
A finding about his credibility should not be made at the different levels of burden of proof; possibility, probability and beyond reasonable doubt. Either the learned Trial Judge accepted the appellant as a witness of truth or she did not. If she did, I think that, in the circumstances of this case, she would then be obliged to conclude that the presumption had been rebutted.
Careful consideration of her reasons for verdict suggest that in making the observation that it was possible that he did not possess the cannabis for sale, she was not making a finding as to his credibility. Later in her reasons, after referring to the evidence of the appellant as to his financial circumstances and the purchase of the hydroponic equipment, which remained in the garage and available for further crops, she said that it was difficult to accept a rationale for production of a supply for some months which required preservation by freezing when ongoing production could continue. Also, the learned Trial Judge referred to the poor financial circumstances of the appellant and said that she could not accept his submission that his circumstances were inconsistent with a financial incentive to sell the cannabis which he had grown. I interpret that observation to mean that, in all the circumstances, the appellant had not persuaded her that he had grown the cannabis only for private use.
Consequently, for these reasons it may be accepted that the learned Trial Judge did not accept the appellant as a witness of truth and therefore the only evidence which could rebut the presumption, namely his evidence, was not sufficiently credible for that purpose.
As to the appeal against sentence, I do not think there is any basis to conclude that the learned Trial Judge erred in rejecting the submission that she should not revoke the suspension of the earlier sentence of imprisonment. The criminal conduct, which is the subject of this appeal, commenced within a few months of the earlier sentence having been suspended. It is a serious breach of the criminal law and there were no “proper grounds” for not revoking the suspension of the earlier sentence. I need not repeat the observations of the Chief Justice with which I agree.
I agree that the appeals should be dismissed.