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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hill

Details

AGLC: R v Hill [2005] SADC 46
Case: [2005] SADC 46
Decision Date: 13 May 2005

CaseChat Overview and Summary

Mr Hill was charged with producing and possessing cannabis for sale or supply. The Crown accepted his guilty plea to producing cannabis, but did not accept his plea of guilty to possession for supply as satisfying the charge of possessing cannabis for sale or supply. The court held that the dispute over whether the possession was for sale or supply should be resolved by trial rather than a disputed fact hearing. The court found that the accused had not pleaded guilty to the offence charged and the Crown was not prepared to accept the plea of guilty to possession for supply in satisfaction of the charge. Therefore, the dispute as to whether the accused possessed the cannabis for sale or supply should be determined by trial rather than a disputed fact hearing. The court found that a disputed fact hearing is not appropriate to determine which offence the defendant has committed. The guilt or innocence of the accused with respect to the charge of possession for sale should be determined by a trial. The court also found that 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. The court ordered that if the parties maintain their present positions the matter should proceed to trial rather than a disputed fact hearing.

Orders