R v Hill - [2005] SADC 46

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v HILL
Ruling of His Honour Judge Clayton
13 May 2005
CRIMINAL LAW
DISPUTED FACT HEARING - accused charged wtih possessing cannabis for sale or supply pleaded guilty to possession for supply. Crown did not accept plea of possession for supply in satisfaction of the charge. Dispute as to whether possession was for the purpose of sale.
HELD: Dispute should be resolved by trial rather than disputed fact hearing.
Controlled Substances Act 1984 ss. 32(1)(a), 32(1)(e), 44, referred to.
R v Hoang (2002) 83 SASR 254; Lapic v Police [2003] SADC 87, discussed.
Lafitte v Samuels (1972) 3 SASR 1 at 6; Lunn: Criminal Law South Australia para 6435.3, considered.

R v HILL
[2005] SADC 46

Mr Hill was charged with producing cannabis contrary to section 32(1)(a) of the Controlled Substances Act 1984 and possessing cannabis for sale contrary to section 32(1)(e) of that Act. Prior to his arraignment on 29 March 2005, the second count was amended to allege possessing cannabis for sale or supply contrary to section 32(1)(e) of the Act. The particulars were amended to allege that he had cannabis “in his possession for the purpose of selling or supplying it to another person”.
When he was arraigned, he pleaded guilty to the charge of producing cannabis and when the second count was read he answered guilty of possession for supply, but did not specifically respond to the charge of possessing cannabis for sale or supply. The prosecutor indicated that the plea of guilty to possession for supply did not satisfy the charge of possessing cannabis for sale or supply.
The parties requested me to proceed by way of a disputed facts hearing, the dispute being the question of whether cannabis in the possession of the defendant was for sale or not. I was referred to R v Hoang[1] and Lapic v Police[2].
[1] (2002) 83 SASR 254
[2] [2003] SADC 87
Section 32(1)(e) of the Controlled Substances Act 1984 provides that a person must not knowingly have a prohibited substance in his possession “for the purpose of the sale supply or administration of that ........ substance to another person”. In Hoang the Court of Criminal Appeal determined that the section created one offence not three and that the provision was intended to prohibit the possession of drugs for distribution by each of the three specified methods. Perry J said (at page 254) that where the Crown case is that the accused has possession of a prohibited substance for sale, the information should be cast in terms alleging only that offence. His Honour said that if, on the other hand, the Crown is in genuine doubt as to which of the modes of committing the offence prescribed in section 32(1)(e) applies, an information is not bad for duplicity if it alleges possession for the purpose of sale, supply or administration.
In Hoang the accused was initially charged with knowingly having a prohibited substance in his possession for the purpose of selling it to another person. The information was amended by including the words “or supply” so the offence charged became “possessing the substance for sale or supply” and the particulars were amended accordingly. The appellant pleaded guilty to the amended charge and the court proceeded to conduct a disputed facts hearing to determine whether the defendant was in possession for the purpose of selling at least some of the substance.
In Lapic the defendant was charged with possessing cannabis for sale, the information was amended to allege “possession for sale or supply”, the defendant pleaded guilty and there was a disputed fact hearing on the question of whether she possessed the cannabis for sale or possessed it for supply. Judge Sulan, as he then was, said that the question which might remain of whether the defendant possessed the drug for sale or for supply is a question to be determined by the judge.
The present case differs from both Huong and Lapic in that Mr Hill has not pleaded guilty to possessing cannabis for sale or supply, but only to possession for supply and the Crown does not accept that plea in satisfaction of the charge.
In my opinion, Hoang and Lapic are not authority for the proposition that the present dispute between the parties can be resolved by a disputed fact hearing rather than a trial.
If the accused does not plead guilty to possession for sale and supply and the Crown is not prepared to accept the plea of guilty to possession for supply only in satisfaction of the charge the matter should proceed to a trial rather than a disputed fact hearing.
If on the disputed fact hearing I found that the accused was in possession of the substance for the purpose of sale, but the defendant had only pleaded guilty to possession for the purpose of supply, I could not convert the plea of guilty to possession for supply into a conviction of possession for sale. The defendant could not be sentenced on the basis that he had possession of the substance for sale because he had not been convicted of that offence.
The prosecution cannot expect a defendant who has been convicted of possession for supply to be sentenced on the basis that he was in possession for sale by reason of vagueness or ambiguity in the charge. See the observations of Bray CJ in Lafitte v Samuels[3].
[3] (1972) 3 SASR 1 at 6
The position would be different if, as in the cases of Hoang and Lapic, the defendant had pleaded guilty to the offence of possession for sale or supply. In that event any dispute as to the facts on which the accused should be sentenced could be determined on a disputed facts hearing.
In my opinion, a disputed facts hearing is not appropriate to determine which offence the defendant has committed. The guilt or innocence of the defendant in respect of the charge of possession for sale should be determined by a trial.
Matters to be taken into account on sentencing a person convicted of an offence against the Controlled Substances Act 1984 are set out in section 44. They include the commercial or other motives of the convicted person and the financial gain that is likely to have accrued to the convicted person. However, those considerations only arise after an accused has been found guilty either by reason of a plea or the verdict of a jury. If there is a difference between the assertions of the Crown and the assertions of the defence on the question of sentencing then a disputed fact hearing is appropriate, but a disputed fact hearing is not appropriate to determine the guilt or innocence of the accused with respect to a charge.
A plea to something other than what is alleged is not an effective plea. Where a defendant pleads to another lesser offence than the offence charged it is up to the prosecution to decide whether it is prepared to accept the lesser plea or not. Similarly, where the defendant’s plea is not responsive to the charge it is up to the prosecution to determine whether it will accept the plea to the other offence in satisfaction of the charge. If the prosecution is not prepared to accept the plea to the lesser or other charge in satisfaction of the information the plea cannot be regarded as a plea of guilty to the offence charged. More specifically, where an accused charged with possession for sale or supply enters a plea of possession for supply, a disputed fact hearing is not the appropriate vehicle to determine whether the defendant is also guilty of possession for sale. A dispute as to whether a particular offence has been committed, as opposed to a dispute about sentencing considerations, should be the subject of a trial.
In the present case I think the plea is a bad plea because it is not responsive to the charge. If the prosecution is not prepared to accept the plea of guilty to possession for supply in satisfaction of the charge, the accused should be arraigned and required to plead to the charge alleged. Lunn: Criminal Law South Australia says in paragraph 6435.3:
“Where a defendant pleads not guilty to the charge, but volunteers a plea of guilty to a lesser offence for which he or she may be convicted on that charge, and the Crown will not accept the plea to the lesser charge in satisfaction of the matter, the matter proceeds as a plea of not guilty to the charge, and the plea to the lesser charge is to be treated as withdrawn: R v Hazeltine [1967] 2 QB 857. “
Section 284(2) of the Criminal Law Consolidation Act 1935 provides:
“If any person, being so arraigned, .... will not answer directly to the information, it shall be lawful for the court to order a plea of not guilty to be entered on his behalf and the plea so entered shall have the same effect as if he had actually pleaded not guilty.”
If the parties maintain their present positions the matter should proceed to trial rather than a disputed fact hearing.