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 the Act identifies a number of matters which the court is required to take into consideration when determining the penalty to be imposed for an offence under the Act. They include matters which might mitigate the offence, such as the personal circumstances of the convicted person. They also include matters which tend to aggravate the offence, such as the presence of a commercial motive.
The sentencing process requires the court to have regard to what is established as a result of the conviction. Because the elements of the offence have been proved or admitted, they provide a starting point for a consideration of the appropriate penalty. It is then appropriate for the court to have regard to the matters relevant to sentencing, which are set out in s 10 of the Criminal Law (Sentencing) Act 1988. In the case of drug offences, there are the additional matters referred to in s 44 of the Controlled Substances Act.
Where a disputed factual matter is relied upon by the prosecution as aggravating the offence, the ordinary rule is that the prosecution must prove that circumstance: Anderson v The Queen (1993) 177 CLR 520. In South Australia, the appropriate standard of proof in these circumstances is proof beyond reasonable doubt. However, there is obviously no further requirement of proof where the matter of aggravation alleged is included in the elements of the offence which have been proved or admitted.
When assessing penalty with respect to the offences referred to in s 44(d) of the Act, the court is required to take into account “the commercial or other motives of the convicted person in committing the offence”. The offences in s 44(d) include the offence charged in the present case.
The fact that a prohibited drug is in the possession of the person for the purpose of sale discloses a feature which distinguishes the offence from one of simple possession. It results in the commission of a more serious offence. The court is required to take it into account when sentencing because it is an element of the offence which has been proved.
However, s 44 acknowledges the obvious consideration that commercial motive is an aggravating feature. Where a person has been convicted of possession of a drug for the purpose of sale, it is important to have regard to the extent and seriousness of any commercial venture which might have been contemplated. These are matters which go beyond what is established by proof of the offence. If prosecution allegations in this respect are not admitted, then they must be proved by the prosecution in the normal way.
Viewed in this light, I do not see any conflict between the use of the presumption in s 32(3) of the Act in a case such as the present and the consideration of commercial motive in s 44. The operation of the presumption is restricted to facilitating proof of the commission of the offence. Any aspect of commercial motive which is not included in the elements of the offence must be proved by the prosecution beyond reasonable doubt.
I agree that the arguments put forward by the appellant do not provide any support for the submission that the presumption created by s 32(3) of the Act cannot be employed in a case in which the charge is possession for the purpose of sale as opposed to the purpose of sale or supply.
In my view the appeal should be dismissed.
GRAY J This is an appeal against conviction.
The appellant was convicted by jury verdict of the crime of possessing methylenedioxymethamphetamine (ecstasy) for sale contrary to section 32(1)(e) of the Controlled Substances Act 1984 (SA).
The issues arising on this appeal relate to the proper interpretation of section 32 of the Controlled Substances Act 1984 (SA), the adequacy of the information and the operation of the presumption contained in section 32(3) of the Act.
It is convenient at the outset to set out the terms of section 32:
(1) A person must not knowingly—
...
(e) have such a drug or substance in his or her possession for the purpose of the sale, supply or administration of that drug or substance to another person.
…
(3)For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person.
The Trial
The Prosecution Case
The information charged the appellant as follows:
Possessing 3,4 – Methylenedioxymethamphetamine for sale.
(Section 32(1)(e) of the Controlled Substances Act, (1984).
Particulars of Offence
Mark Anthony Ninnes on 20 August 2004 of Salisbury North, knowingly had 3,4 – Methylenedioxymethamphetamine (known as Ecstasy), a prohibited substance, in his possession for the purposes of selling it to another person.
On 20 August 2004 at 5.00 am, police stopped a motor vehicle being driven by the appellant. He was the only person in the vehicle. The vehicle was registered in his name.
Police searched the appellant and the vehicle. They located $5,000 in cash, bundled in $50 notes in a bag around the appellant’s waist. The police located a wooden baton under a seat and a knife in the glove box. While police were searching, the appellant was said by the police to be “pacing, just fidgety ... grabbing (the bum-bag) and was continually told to put it back”. In the boot, police located a transformer box. As the police located the transformer, the appellant slammed the boot shut. Police re-opened the boot and continued the search. The located nine hundred and ninety (990) ecstasy tablets in a package hidden in the boot under a carpet.
As police located the package containing the drugs, but before they opened the package, the accused took the bag containing the money and ran from the police. He was chased, apprehended and arrested.
The 990 tablets contained 71.9 grams of ecstasy. The Court heard evidence as to common trends and methods involved in the sale of ecstasy.
The Defence Case
The appellant’s evidence was that he had sold the vehicle for $1,500 to his uncle. The sale took place, he claimed, a week prior to the time when he was stopped by the police.
The appellant told the court that he was still holding the money from the sale of the car at the time he was stopped. His parents had given him the remaining $3,500 to purchase another vehicle. He said that he was carrying the money because it was safer than leaving it at home. The appellant claimed that he had never seen the baton before the police pulled it out from under the seat.
The appellant explained his flight as arising out of concern for losing the money that police located on him, and from nervousness at police finding a weapon when he believed that it was a condition of his parole that he not carry a weapon. He said that he was “sick and tired” when he shut the boot. He did not know what was in the package that police found. He turned around, grabbed his money and ran.
The defence case was that the appellant did not know of the presence of the tablets in the vehicle, and so was not in possession of them for any purpose, let alone sale.
The Application of the Presumption at Trial
In addition to the evidence presented at the trial, the prosecution relied on the presumption in section 32(3) of the Controlled Substances Act.
The prescribed amount of ecstasy for purposes of the subsection is 0.5 grams.[1] As earlier observed, the amount of ecstasy contained in the 990 tablets was 71.9 grams. Accordingly section 32(3) of the Controlled Substances Act was enlivened.
[1] See Schedule 2 of the Controlled Substances (Prohibited Substances) Regulations 2000 (SA).
The trial Judge directed the jury on the presumption:
... if you find the accused was knowingly in possession of ecstasy and it was more than half a gram, then, ladies and gentlemen, nothing more has to be proved as far as that fifth element is concerned. The law deems that he has had it in his possession for the purposes of sale. One follows the other.
However, if the defendant proves to you that even though he is in possession of that amount and he was knowingly in possession of that amount, if he can prove to you that he had it in his possession for some other reason other than sale, then he will be not guilty of possessing ecstasy for sale, but guilty of merely possessing ecstasy.
The Judge also made clear the standard of proof that applied to the appellant in the discharge of the presumption.
As earlier observed, the appellant was convicted by jury verdict.
Relevant Case Law
In Hoang,[2] the Court took the view that section 32(1)(e) of the Controlled Substances Act creates one offence. As was there observed:
Section 32(1)(e) seeks to penalise the act of possession with intent to distribute. The section penalises that act of possession if the possession is for one or more specified purposes. In this circumstance there is only one offence regardless of whether the act of possession is for any or more of the prohibited purposes. Those purposes are sale, or supply or administration. The amended information specified sale or supply. There can be, as section 32(1)(e) recognises, more than one purpose for possession and more than one method of committing the same offence.
Accordingly, Section 32(1)(e) creates only one offence of knowingly being in possession of a drug of dependence or a prohibited substance for the purpose of sale, supply or administration to another. The use of the disjunctive “or” in the section merely specifies the different ways in which the single offence may be committed.
[2] R v Hoang (2002) 83 SASR 254– Gray J at [24-25], (Perry and Williams JJ agreeing)
The Court of Criminal Appeal in Rowan[3] further considered section 32(1)(e). Doyle CJ, with whom Perry and Nyland JJ agreed, after referring to the judgment in Hoang, observed:
... the Director may lay a charge alleging one only of the specified purposes or one only of the specified methods of committing the offence. Thus, the Director may charge possession for the purpose of sale, and in that event to obtain a conviction must prove that particular purpose existed. The Director might charge possession for the purpose of sale and supply. In that event the Director must prove that each of those intentions exists, presumably as to different parts of the total quantity of the substance in question. The Director might charge possession for the purpose of sale or supply, or indeed for the purpose of sale or supply or administration. In such a case what the Director must prove is that the possession in question is for one or other of those purposes, but certainly for one of them.
[3] R v Rowan (2003) 85 SASR 364.
In Hoang,[4] the Court also considered the operation of the presumption. Perry J commented:
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.
It was also observed:[5]
The presumption arises with respect to the act of possession if more than the prescribed amount of the drug of dependence or prohibited substance is possessed. A presumption of sale or supply arises. It does not matter if it is not known whether it is for sale or supply. The object of the Controlled Substances Act is to prevent distribution. The precise purpose is not an essential ingredient of the offence.
[4] R v Hoang (2002) 83 SASR 254 at [5]. Williams J agreeing [8].
[5] R v Hoang (2002) 83 SASR 254 at [27]. Gray J
In Rowan, the Court also considered the operation of the presumption contained in section 32(3) of the Controlled Substances Act, in circumstances where the Director charges possession for sale simpliciter or possession for supply simpliciter. Doyle CJ held that the presumption in section 32(3) of the will apply according to the terms in which the charge is particularised: - it can apply where the charge alleges sale, supply, or sale or supply. Doyle CJ observed:[6]
The issue that this case presents arises because s 32(1)(e) creates only one offence, as this Court held in Hoang. If that provision created three separate offences, namely, the offences of possession for the purpose of sale, possession for the purpose of supply and possession for the purpose for administration, then s 32(3) would have to be read as creating a presumption that could be applied distributively or separately to each of the first two offences. I say that because if s 32(1)(e) created three separate offences, it would not be possible to charge a person with possession for the purpose of sale or supply. To do so would be duplicitous. That was the point at issue in Hoang. That being so, it would make no sense to read the presumption in s 32(3) as applicable only when the charge was possession for the purpose of sale or supply. Accordingly, as I have said, it would be read as creating a presumption that could be invoked on a charge of possession for sale and a presumption that could be invoked on a charge of possession for the purpose of supply.
The Appeal
[6] R v Rowan (2003) 85 SASR 364 at 369.
The Adequacy of the Information – The Operations of the Presumption
The appellant submitted that Rowan[7] was wrongly decided and should be reviewed. This Court declined a similar invitation in Granger,[8] where Doyle CJ, speaking for the Court, observed:[9]
A further submission put was that s 32(3) of the CSA applies only when the offence charged is that of possessing the drug or substance for the purpose of sale or supply. The offence here charged and particularised was that of possessing cannabis for sale only. This submission was previously rejected by this Court in [Rowan]. The submission was put but not elaborated, Mr Schapel indicating that the correctness of Rowan might be challenged if this matter goes to the High Court.
It is settled that this Court will not depart from its own previous decision unless it is persuaded that the decision is clearly wrong.[10]
[7] R v Rowan (2003) 85 SASR 364.
[8] R v Granger (2004) 88 SASR 453.
[9] R v Granger (2004) 88 SASR 453 at [14].
[10] R v Gilson (1990) 54 SASR 191 at 196; 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.
Counsel for the appellant further submitted that section 32(3) of the Controlled Substances Act created a statutory fiction that allows the Director thereby to establish an element of a criminal offence. Counsel for the appellant contended that in that circumstance the fiction should be construed narrowly. Counsel made reference to the decision of King CJ in Bilick.[11] Counsel argued that section 32(3) created a presumption with respect to the purpose of the sale or supply of a drug. It was said that the presumption could only operate with respect to an information that alleged sale or supply - if the information referred only to a single purpose, the presumption could not operate.
[11] R v Bilick (1984) 36 SASR 321 at 328-9.
These submissions should be rejected. It would give to the statutory provisions a restricted meaning that would frustrate the evident intent of the legislature.
In Rowan, Doyle CJ rejected a similar submission for the following reasons:[12]
As s 32(1)(e) creates only a single offence, it is possible for a person to be charged with possession for the purpose of sale or supply. That creates the possibility that Parliament intended the presumption created by s 32(3) to be available only in that situation, and not when the charge is possession for the purpose of sale, or when the charge is possession for the purpose of supply, or, perhaps, when the charge is possession for the purpose of sale and supply.
The court is concerned with the meaning to be attributed to s 32(3). But the fact that the approach to that issue is affected by the proper reading of s 32(1)(e), in the manner just mentioned, illustrates that the court is dealing with fairly fine shades of meaning.
In my opinion Mr Lang's submission should not be accepted. My reasons for so concluding are as follows.
First, s 32(3) can be read in the manner for which the Director contends without any difficulty. I agree that it can be read in the manner for which Mr Lang contends. But my point is that there is no difficulty in reading it the other way.
Secondly, I am influenced by the fact that the charge of possession for the purpose of sale or supply is not the paradigm of the charge to be anticipated under s 32(1)(e). I cannot think of any reason why Parliament would have singled out a charge of possession for the purpose of sale or supply to be the situation in which a presumption is available to assist the Director, not making that presumption available in the case of a charge of possession for the purpose of sale or possession for the purpose of supply.
Thirdly, the meaning for which the Director contends does not result in an outcome that is surprising, nor is it one that is unfair. As to the latter point, there is not much difference, in terms of seriousness, between a conviction for possession for the purpose of sale as against a conviction for possession for the purpose of supply. "Supply" is defined in s 4 of the Act so as to have a wide meaning. There will be situations in which an act that would, as a matter of law, amount to sale would fall within the definition of "supply". I acknowledge that possession for the purpose of sale is, in principle, a more serious offence than possession for the purpose of supply when the supply is gratuitous. But there will be situations in which the circumstances of the offence will mean the possession for the purpose of supply will be a serious offence, and there can be situations in which possession for the purpose of sale can be regarded as not particularly serious. That is why I conclude that a reading of s 32(3) that enables the Director to invoke the presumption that possession is for the purpose of sale, when the charge is possession for sale, does not produce a result so unfair that one would conclude that Parliament could not have so intended.
Finally, no principle of statutory interpretation was identified that points towards a contrary conclusion. I accept that a presumption of this kind, that enables the prosecution to prove an element of an offence whether that element is in fact present or not, is to be construed narrowly and to be applied cautiously. However, when s 32(3) is considered in its statutory context, my view is that it is quite unlikely that Parliament intended it to have the limited operation for which Mr Lang contends, and accordingly the relevant principle does not point to a conclusion contrary to that which I have reached.
[12] R v Rowan (2003) 85 SASR 364 at 370.

There is no reason to revisit the issues considered in Rowan. That decision accords with the reasons of the Court in Hoang in respect to the interpretation and application of the presumption in section 32(3) of the Controlled Substances Act. It cannot be said that Rowan decision is clearly wrong. To the contrary, Rowan is in my view correctly decided.
Section 44 – Matters of Aggravation
Counsel for the appellant submitted that the suggested difficulties identified with respect to the application of the presumption were compounded when regard was had to the terms of section 44 of the Controlled Substances Act. That section relevantly provides:
In determining the penalty to be imposed upon a person convicted of an indictable or minor indictable offence against this Act, the court must take into consideration—
(a)the nature of the substance or goods involved in the commission of the offence; and
(b)the quantity of the substance or goods involved in the commission of the offence; and
...
(d)in the case of an offence involving the manufacture, production, sale or supply of a drug of dependence or prohibited substance, or the possession of a drug of dependence or prohibited substance with intent to sell or supply it to another—
(i) the commercial or other motives of the convicted person in committing the offence; and
(ii) the financial gain that is likely to have accrued to the convicted person as a result of the commission of the offence (but this is not to be taken into consideration if that financial gain is the subject of an application under the Criminal Assets Confiscation Act 2005); and
...
Counsel contended that the presumption in section 32(3) only operated on its express terms for the purpose of section 32. As a result, Counsel said that the section had no operation when considering matters arising under section 44. Otherwise, counsel for the appellant contended a challenge to an allegation of a commercial motive would be precluded.
It does not follow that because there has been a conviction for an offence of possession for sale, the offence must be characterised as involving a commercial motive as that term is used in section 44. There may be a sale in circumstances where there is no commercial motive. There may be no commerciality about the sale. A presumption of sale is not a presumption of conduct with a commercial motive.
Section 44 only has any potential application once an offence has been proved (in the present case, the offence of possession for sale). Once that offence has been proved, the Crown carries the onus of establishing any circumstances of aggravation. This includes any matters of aggravation identified in section 44 – in particular, any commercial motive. There may be a sale in circumstances that fall short of conduct with a commercial or any other motive amounting to a circumstance of aggravation.
In Anderson,[13] Deane, Toohey and Gaudron JJ observed:[14]
If, on a sentencing hearing after a plea of guilty, the Crown wishes to rely on some alleged, but disputed, factual circumstance as aggravating the offence, the ordinary rule is that the onus lies upon the Crown to establish the existence of that circumstance. It is common ground, and rightly so, that the standard of proof which rests upon the Crown in such a case in South Australia is the ordinary criminal standard, namely, beyond reasonable doubt. If the Crown fails to establish the disputed circumstance of aggravation to that standard of proof, the offender must be sentenced on the basis that that circumstance of aggravation has not been shown to exist. (footnotes omitted)
[13] Anderson v The Queen (1993) 177 CLR 520.
[14] Anderson v The Queen (1993) 177 CLR 520 at 536.
A similar issue arose before this Court in the matter of Selita. To understand that decision requires attention to some unusual factors. The accused was there charged with possession for “sale or supply”. On arraignment, he pleaded guilty on the basis of possession for supply. The allocutus was not given. As a result, on appeal, an issue arose as to the effectiveness of the plea. It was concluded:[15]
There was an effective plea to the charge. A solemn confession was made to each of the elements of the offence - possession of a prohibited substance for an improper purpose. The appellant acknowledged his guilt to the charge of possession for sale or supply, but expressed the qualification that his plea was on the basis that he was guilty of the offence for the purpose of supply not sale.
The matter proceeded as a disputed facts hearing, with the parties apparently addressing the issue of a commercial motive under section 44.
[15] R v Selita (2004) 149 A CrimR 243 Gray J at [76] – Perry and Nyland JJ agreeing.
In Selita, counsel for the accused submitted that the trial Judge erred in treating the statutory presumption provided in section 32(3) as having application when considering questions arising under section 44. Counsel submitted that the statutory presumption only had application in respect to a presumption of sale for the purpose of “sale or supply”, not sale and separately “supply”. Although in a different context, this was similar to the submission that has been put to this Court. That submission was rejected in Selita.
However the Court in Selita considered that the trial Judge approached the resolution of commercial motive by equating sale with commerciality and thereby cast an onus on the accused. The Court held that the Judge was wrong to do so.
In Selita the prosecution accepted that it carried the onus of proving a matter of aggravation – in that case a commercial motive. The prosecution contended that the circumstances then under consideration established a commercial motive. In that respect, the Court concluded that the prosecution bore the onus of proof. The decision in Selita proceeded on the basis that Hoang and Rowan were both correctly decided. There is no inconsistency between Selita and those authorities.
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.
By Ground 3, the appellant raised an allegation of abuse of process. The complaint was that the prosecution’s reliance on the s 32(3) presumption was an abuse of process because that reliance foreclosed in the prosecution’s favour the issue of commercial motive, an issue upon which the prosecution would otherwise have had the onus in the sentencing process. Although argued as a separate ground, the matters relied upon for this ground were included in the appellant’s submissions with respect to the first ground.
In R v Rowan[19], Doyle CJ (with whom Perry and Nyland JJ agreed) rejected a submission that the statutory presumption is available only when the charge is possession for the purpose of sale or supply, and was not available when the accused was charged with possession for sale only. The appellant argued that Rowan was wrongly decided.
[19] [2003] SASC 138; (2003) 85 SASR 364.
Mr Wells QC, who appeared with Mr Tokley for the appellant, argued first that the Full Court in Rowan had failed to appreciate the implications to be drawn from the relationship between s 32 of the CSA on the one hand, and s 44 of the CSA on the other. Section 32, it was said, created the offence in subsection (1), prescribed the operation of the presumption in subsection (3), and identified the applicable penalties in subsection (5). Section 44 on the other hand identified matters relevant to sentence and, in particular, matters of aggravation. As s 32(3) commenced with the words “for the purposes of this section” it was plain, so the argument ran, that the presumption had no operation when the Court was considering the matters to which s 44 directed its attention. If the prosecution wished a sentencing court to take account of a commercial motive as a matter of aggravation (s 44(d)(i)) it had to prove the existence of that motive, and had to do so beyond reasonable doubt, and without the benefit of any presumption. The decision in Rowan meant however that the prosecution could prove a purpose of sale (ie, a commercial motive) with the benefit of the presumption, something which was not contemplated by s 44.
Section 44 is not referred to in the judgments in Rowan and it seems that the present argument was not put in Rowan. Nevertheless, I do not consider that consideration of the interrelationship between s 32 and s 44 indicates that Rowan was wrongly decided.
I agree with the separate reasons given by Duggan and Gray JJ for holding that there is no relevant conflict between the operation of the s 32(3) presumption on the one hand and consideration of any commercial motive, as required by s 44 on the other. Further, the s 32(3) presumption operates for all purposes of s 32 which includes sentencing. This was made plain in R v Scali[20] in which King CJ (with whom Prior and Olsson JJ agreed) said:
The presumption is brought into existence for all the purposes of the section. The section not only creates criminal liability for the various offences set out in it, but also provides the penalties for those offences. It seems clear therefore from the language of the section itself that the presumption applies not only with respect to determining criminal liability but also with respect to the sentencing process.
The very purpose of the presumption quite clearly is to render the possession of quantities of prohibited drugs in excess of the prescribed quantities the basis for imposing criminal liability on the possessor for the more serious offence of possession for sale, supply or administration to another and to make the offender punishable in the way which is prescribed for the more serious offence. That purpose would be largely frustrated if the presumption had to be disregarded when determining the facts which would be the basis for the assessment of the sentence[21].
[20] (1986) 40 SASR 597.
[21] Ibid at 599.
In summary, a conviction (reached with the aid of the statutory presumption) of the offence of possession of a prohibited substance for sale identifies the offence for which the offender is to be sentenced but it does not foreclose all the issues of commercial motive which may arise in relation to sentencing for that offence.
Mr Wells QC made other submissions. It was submitted that the construction of s 32(3) for which he urged was open on the language of s 32(1)(e) and s 32(3). In those circumstances, the principle of statutory construction that a fiction which may be used to establish an element of a criminal offence should be construed narrowly rather than broadly[22] should be applied. These submissions were considered by the Full Court in Rowan. The relevant passages in Rowan are contained in the judgment of Gray J. The reasons of the Chief Justice in Rowan are in my respectful opinion persuasive. Like the other members of this Court, I am not satisfied that Rowan was wrongly decided.
[22] R v Bilick (1984) 36 SASR 321 at 328-9 per King CJ.
Accordingly, I would reject the contention that the count upon which the appellant was convicted did not allege an offence to which the s 32(3) presumption applied, and the further contention that reliance on the presumption involved an abuse of process.
I would dismiss the appeal.