R v Ninnes - [2007] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NINNES
[2007] SASC 40
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)
19 February 2007
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - FOR SALE OR SUPPLY
Appeal against conviction - appellant convicted of the crime of possessing methylenedioxymethamphetamine (ecstasy) for sale contrary to section 32(1)(e) of the Controlled Substances Act 1984 (SA) - whether the presumption created by section 32(3) of the Controlled Substances Act 1984 (SA) applies where an accused is charged with possession for sale, rather than for sale or supply - whether section 44 of the Controlled Substances Act 1984 (SA) precludes the operation of the presumption created by section 32(3) - Information contained no defect - trial Judge correctly directed jury - appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(1)(e), s 32(3), s 44, referred to.
R v Hoang (2002) 83 SASR 254; R v Rowan (2003) 85 SASR 364; R v Granger (2004) 88 SASR 453; R v Gilson (1990) 54 SASR 191; Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd, McAuley and Another (1989) 52 SASR 148; White v The Queen [1967] SASR 184; Devlin v Collins (1984) 37 SASR 98; R v Bilick & Starke (1984) 36 SASR 321; Anderson v The Queen (1993) 177 CLR 520; R v Selita (2004) 149 A Crim R 243, considered.

R v NINNES
[2007] SASC 40
Court of Criminal Appeal: Duggan, Gray and White JJ

DUGGAN J. I have had the advantage of reading the draft reasons prepared by Gray J.
In R v Rowan (2003) 85 SASR 364, the appellant was charged with possessing cannabis for the purpose of sale contrary to s 32(1)(e) of the Controlled Substances Act 1984 (“the Act”). It was held by this court that the presumption provided for in s 32(3) of the Act could be employed in that case, despite the fact that the information charged the appellant with possession for the purpose of sale and not possession for the purpose of sale or supply. The argument advanced on behalf of the appellant in Rowan that the statutory presumption was available only where the charge alleged that the possession was for the purpose of sale or supply was rejected.
I agree with Gray J’s view that the arguments advanced on the hearing of this appeal do not justify the court in departing from the decision in Rowan’s case.
I add these remarks in relation to the appellant’s submission that the use of the presumption in cases in which it is alleged that the possession is for sale only forecloses, in the prosecution’s favour, the issue of commercial motive which arises under s 44 of the Act. In support of this submission, it was pointed out that s 32(3) specifically restricts the operation of the presumption to s 32.
Section 44 of…

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 Ninnes

Details

AGLC: R v Ninnes [2007] SASC 40
Case: [2007] SASC 40
Decision Date: 19 February 2007

CaseChat Overview and Summary

In the case of R v Ninnes, the appellant was convicted of the crime of possessing methylenedioxymethamphetamine (ecstasy) for sale, contrary to section 32(1)(e) of the Controlled Substances Act 1984 (SA). The appellant appealed against his conviction, raising two grounds of appeal. The first was that the statutory presumption established by section 32(3) of the Act could not be applied to the particular offence with which the appellant was charged, as the presumption applied to a charge of possession of a prohibited substance "for the purpose of sale or supply" whereas in this case the appellant had been charged with possession for sale only. The second ground of appeal was that reliance on the presumption amounted to an abuse of process resulting in a miscarriage of justice.

The court examined the legal issues regarding the application of the statutory presumption established by section 32(3) of the Controlled Substances Act 1984 (SA) and whether section 44 of the Act precluded the operation of the presumption. The court found that the prosecution had correctly charged the appellant with possession for sale, and there was no need for the prosecution to include the words “or supply” in circumstances where the prosecution alleged that possession was for possession for sale only. The court held that the trial judge correctly directed the jury in respect to the application of the presumption and that the presumption operated to establish a presumption for sale. The court dismissed the appeal and concluded that the appellant was rightly convicted.

The court found that the presumption in section 32(3) operated, and a presumption for sale arose. The trial judge correctly directed the jury in respect to the application of presumption. The appellant was rightly convicted, and at that point, the operation of section 32(3) was spent. The court held that section 32(3) had no further work to do. The court also noted that when imposing sentence, the offence of possession of ecstasy for sale is under consideration, and the onus remains on the prosecution to prove any circumstances of aggravation identified in section 44 or otherwise beyond reasonable doubt.

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

DUGGAN J GRAY J

In the present case the appellant was convicted of the offence of possession of ecstasy for sale. The offence involves possession for a motive – sale. The appellant, if the conviction is upheld, is to be sentenced for that offence. Any matter of aggravation, for example commerciality, is a matter that must be established by the prosecution beyond reasonable doubt.Conclusion In the present case, the prosecution specified the charge in the Information as possession for sale. The prosecution had to prove that the drugs located in the vehicle in which the appellant was travelling were knowingly possessed by him for the purpose of sale. Consistent with the judgments in Hoang[16] and Rowan,[17] there was no need for the prosecution to include the words “or supply” in circumstances where the prosecution alleged that possession was for possession for sale only.[16] R v Hoang (2002) 83 SASR 254.[17] R v Rowan (2003) 85 SASR 364. Given the quantity of amphetamines located, the presumption in section 32(3) operated, and a presumption for sale arose. The trial Judge correctly directed the jury in respect to the application of presumption. The appellant was rightly convicted. At that point the operation of section 32(3) was spent. Section 32(3) had no further work to do.[18][18] R v Selita (2004) 149 A Crim R 243 per Perry J at [51-54]. When imposing sentence the offence of possession of ecstasy for sale is under consideration. The onus remains on the prosecution to prove any circumstances of aggravation identified in section 44 or otherwise beyond reasonable doubt. This appeal should be dismissed.WHITE J: The circumstances giving rise to this appeal and the applicable statutory provisions are set out in the judgment of Gray J. The appellant was found guilty of the offence of possessing Methylenedioxymethamphetamine for sale, contrary to s 32(1)(e) of the Controlled Substances Act 1984 (SA) (“CSA”). The particulars of the charge in the information allege that the appellant had, on 20 August 2004, “knowingly had 3, 4 - Methylenedioxymethamphetamine (known as Ecstasy), a prohibited substance, in his possession for the purpose of selling it to another person.” The appellant argued two grounds of appeal and abandoned a third. The two grounds argued were:2.The count upon which the Appellant was tried did not allege an offence within the meaning of s 32(1)(e) of the Controlled Substances Act 1984 to which the presumption under s 32(3) applied.3.Further, or alternatively, reliance on the presumption amounted to an abuse of process resulting in a miscarriage of justice. In short, by Ground 2 the appellant argued that the statutory presumption established by s 32(3) could not be applied to the particular offence with which the appellant was charged. This was so, it was said, because the presumption applied to a charge of possession of a prohibited substance “for the purpose of sale or supply” whereas in this case the appellant had been charged with possession for sale only. As I understood it, the appellant accepted that it was open to the prosecution to charge a person with possession of a prohibited substance for the purpose of sale (and not sale or supply) but that if it did so, it forwent the ability to rely upon the s 32(3) presumption.

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J, GRAY J

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