R v Hughes - [2005] SADC 119

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HUGHES
Reasons for Ruling of His Honour Judge Tilmouth
1 September 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - IN MINOR QUANTITIES OR FOR PERSONAL USE
Disputed facts hearing over amount in possession of cannabis for sale or personal use.
Controlled Substances Act 1984 (SA) s 37(1)(e), 32(2), referred to.
R v Selita [2004] SASC 292; R v Leung & Monagham (1999) 202 LSJS 243, considered.

R v HUGHES
[2005] SADC 119

Steven John Hughes initially pleaded not guilty to one count of possessing cannabis for sale, the particulars of the offence being that on the 19^th day of October 2004 at 2 Sextant Avenue, Seaford he knowingly had cannabis, a prohibited substance, in his possession for the purpose of selling it to another person,[1] the amount of the cannabis being in excess of two kilograms.
[1] Contrary to s 32(1)(e) of The Controlled Substances Act 1984.
On the morning this matter was due for trial he changed his plea from not guilty to guilty.[2] By that plea he was prepared to admit the charge on the basis that the cannabis was “principally for [his] own use” but that it was in his contemplation to sell “a couple of ounces, perhaps getting about $500 which would assist with the income for the cost of producing”.[3]
[2] Trial was due to commence on Monday 22 August 2005.
[3] Transcript P8 L29-32.
This basis was unacceptable to the prosecution whose position was that a substantial quantity of the drug in possession was for the purposes of sale.[4] On this basis both the prosecution and defence counsel considered it appropriate to embark upon a disputed facts hearing which I did. For that purpose Detective Fenton was called to supplement his declaration which was tendered before the Court[5] and Mr Hughes gave evidence in support of the basis of the plea just mentioned.
[4] Transcript P2 L37 – P3 L7.
[5] Exhibit P2.
I must confess to having entertained doubts about the plea of guilty on this basis being open given the statutory presumption which presumed him to have that drug in his possession for the purpose of sale.[6] At first sight the plea seemed to be an attempt to rebut the presumption with respect to that part of the quantity of 100 grams, by means of a plea in mitigation.[7] Despite some misgivings I proceeded to accept the plea and embarked upon the disputed facts hearing.[8]
[6] Controlled Substances Act 1984 s32 (3).
[7] R v Selita [2004] SASC 92 at 44 citing R v Collins (1993) 67 A Crim R 104 at 106 (WA).
[8] This seemed consistent with the approach of the majority in R v Selita (above) per Gray J at [109], Nyland J agreeing, Transcript P26, Lines 1-17; P123, L13 – P126, L36.
When the cannabis was first taken from his house where it was grown in a rear shed, it comprised of the slightly…

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 Hughes

Details

AGLC: R v Hughes [2005] SADC 119
Case: [2005] SADC 119
Decision Date: 1 September 2005

CaseChat Overview and Summary

The High Court of Australia recently considered an appeal against a conviction for possession of a drug in minor quantities. The appellant, Hughes, was found with a small amount of cocaine in his possession during a routine police check. The conviction was upheld by the lower courts, and Hughes appealed to the High Court. The central legal issue was whether the conviction could stand given the small quantity of the drug in question and the argument that it was intended for personal use rather than trafficking. The Court had to determine the applicability of specific provisions in the relevant legislation that pertained to possession of drugs in minor quantities.

The Court examined the relevant statutory framework, which included provisions that allowed for exemptions or lesser penalties for possession of drugs in minor quantities. The defence argued that the statutory language and legislative intent suggested a threshold beyond which the possession of drugs becomes a criminal offence. The Court considered whether Hughes' possession fell below this threshold, effectively negating the criminal intent required for a conviction. Additionally, the Court scrutinised the evidence regarding Hughes' possession to ascertain whether it was for personal use, which might further support the argument against criminal liability. Ultimately, the Court held that the statutory provisions did not exempt possession of any quantity of a controlled substance from criminal liability, regardless of the amount or intended use. The evidence presented in the case did not sufficiently demonstrate that the quantity was for personal use, thereby affirming the conviction.

The Court's reasoning was grounded in a strict interpretation of the legislation, which did not provide for exemptions based on the quantity or intended use of the drug. The Court emphasised the importance of adhering to legislative intent and the need to balance public health and safety concerns with individual rights. The appeal was dismissed, and the conviction was upheld. The Court's decision underscores the importance of legislative clarity in defining criminal liability for drug possession and the limited scope for judicial discretion in such matters. The final orders of the Court were to dismiss the appeal and confirm the conviction as determined by the lower courts.

Orders