R v HOANG
[2002] SASC 262
Court of Criminal Appeal Perry, Williams & Gray JJ
PERRY J I agree that the appeal should be dismissed for the reasons given by Gray J.
In my experience, when the Crown case is that the accused has possession of a prohibited substance for sale, the information is ordinarily cast in terms alleging only that offence. This is as it should be. As Bray CJ observed in Lafitte v Samuels:[1]
“Prosecutors should make up their minds what they want to charge and then boldly charge it.”
[1] (1972) 3 SASR 1 at 6.
On the other hand, if the Crown is in genuine doubt as to which of the modes of committing the offence prescribed in s 32(1)(e) applies, an information is not bound for duplicity if it alleges possession for the purpose of sale or supply, or even sale, supply, or administration.
The accused may always seek particulars as to which is said to apply. But the court may not think it proper for any further particularity to be given, if the evidence to be led by the Crown falls short of identifying which mode of committing the offence applies.
The evidentiary presumption created by s 32(3) operates only with respect to possession for sale or supply, and not to possession for administration. But once the presumption is properly invoked, it will apply according to the terms in which the charge is particularised. If the information alleges sale or supply, the presumption will apply to both, although at the end of the day the facts accepted by the jury may prove one to the exclusion of the other.
If, on the other hand, possession for sale only is alleged, or possession for supply, if invoked, the presumption will operate with respect to the charge alleged and that alone.
I would dismiss the appeal.
WILLIAMS J For the reasons given by Perry J and Gray J I agree that the appeal should be dismissed.
GRAY J This is an appeal against conviction.
Background
The appellant Van Tan Hoang was convicted on his plea of guilty to possessing heroin for sale or supply. The information initially charged the offence of possessing heroin for sale. The information provided:
“Statement of Offence
Possessing Heroin for sale. (Section 32(1)(e) of the Controlled Substances Act, 1984).
Particulars of Offence
Van Tam Hoang on the 4th August, 2000 at West Croydon, knowingly had heroin, a prohibited substance, in his possession for the purpose of selling it to another person.”
On 21 February 2002 with the consent of counsel for the appellant the learned trial judge amended the information by including the words “or supply”. The offence charged now became possessing heroin for sale or supply. The particulars were amended so that the final words read “for the purpose of selling or supplying it to another person.”
The appellant pleaded guilty to the amended charge in the presence of the jury. He did so in the knowledge that the…
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- R v Hoang [2002] SASC 262
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- [2002] SASC 262
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CaseChat Overview and Summary
The court was required to determine whether the content of the material sent by the appellant constituted 'obscene' matter under the statutory definition. The appellant argued that the material was not obscene as it lacked the necessary level of prurient interest and had redeeming social value. The prosecution maintained that the material was indeed obscene as it contained explicit depictions and was likely to offend the standards of ordinary people.
In its judgment, the court examined the statutory language and relevant case law to assess the obscenity of the material. The court found that the material in question did possess a significant degree of prurient interest and lacked any substantial redeeming social value. The court held that the material was likely to offend the standards of ordinary people and therefore constituted obscene matter under the Act. The appeal was dismissed, and the appellant's conviction was upheld.
The final orders of the court confirmed the appellant's conviction and sentence, with no appeal to a higher court permitted. The appellant remains subject to the original judgment and sentence imposed by the lower court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: GRAY J
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