R v Satalich - [2001] VSCA 106

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 354 of 2000

THE QUEEN
	v.
WILLIAM JOSEPH SATALICH

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JUDGES:	WINNEKE, P., BATT and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 June 2001
DATE OF JUDGMENT:	27 July 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 106

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Criminal law – Trafficking in drug of dependence – s.71(1) of Drugs Poisons and Controlled Substances Act 1981 –Presentment alleging trafficking in “not less than commercial quantity” – Whether the “aggravating circumstance” an element of offence – Whether s.71(1) of Act creates more than one offence – Whether judge entitled to determine the issue of “commercial quantity” in the event that the jury is unable to agree and to record a conviction against accused pursuant to s.71(1)(a) of the Act – Power of the Court to rectify the injustice to the applicant discussed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, Q.C.	Ms. Kay Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr. D. Grace, Q.C. and Ms. M. Marich	Brendan Wilkinson

WINNEKE, P.:

In November 2000 the applicant was presented before a jury in the County Court at Melbourne on two counts of trafficking in a drug of dependence, namely cannabis, contrary to s.71 of the Drugs Poisons & Controlled Substances Act 1981 (“the Act”). Count 1 alleged trafficking between 15 and 25 February 1999 and count 2 alleged trafficking between 9 and 15 March 1999. Count 2 on the presentment alleged, in a separate paragraph:

“This trafficking was in relation to a quantity of that drug of dependence that was not less than a commercial quantity applicable to that drug of dependence.”

The “commercial quantity” of cannabis L prescribed by the Act, as it stood at the relevant time, was 25 kg.

The applicant was put in charge of the jury on the two counts to which I have referred, having pleaded “not guilty” to such counts. After pleading “not guilty” to count 2, the facts contained in the separate paragraph were also put to him and he pleaded “not guilty” to those facts. The trial was a short one; the real issue between the Crown and the applicant being in relation to whether the quantity of cannabis alleged to have been trafficked in the second count was “a commercial quantity”. On that issue evidence was led on both sides; the prosecution evidence suggesting that the weight of the cannabis seized was, at the relevant time, in excess of 25 kg; the defence evidence suggesting that it was not, and could not have been, anything like 25 kg.

As I have said, both counts on the presentment alleged offences contrary to s.71 of the Act. That section, so far as relevant, provides:

“(1)A person who, without being authorized … to do so, trafficks … in a drug of dependence is guilty of an indictable offence and liable:
(a)where the Court is satisfied beyond reasonable doubt that the offence is committed in relation to a quantity of a drug 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 Satalich

Details

AGLC: R v Satalich [2001] VSCA 106
Case: [2001] VSCA 106
Decision Date: 27 July 2001

CaseChat Overview and Summary

The case of R v Satalich involved a criminal prosecution for trafficking in a drug of dependence. The dispute arose under section 71(1) of the Drugs Poisons and Controlled Substances Act 1981. The defendant was charged with trafficking in "not less than commercial quantity," which is an aggravating circumstance under the Act. The primary legal issues before the court were whether the aggravating circumstance is an element of the offence, whether section 71(1) of the Act creates more than one offence, and whether the judge was entitled to determine the issue of "commercial quantity" if the jury was unable to agree and subsequently record a conviction under section 71(1)(a) of the Act.

The court examined the statutory provisions and found that the aggravating circumstance of trafficking in "not less than commercial quantity" is indeed an element of the offence. It held that section 71(1) of the Act does create more than one offence, distinguishing between trafficking in a commercial quantity and trafficking in a quantity less than commercial. The court further determined that in the event the jury cannot agree on the issue of "commercial quantity," the judge is entitled to make a finding on this matter and record a conviction under section 71(1)(a) of the Act. Additionally, the court discussed the power of the court to rectify any injustice to the applicant, ensuring that the rights and procedural fairness of the defendant were upheld.

Consequently, the court affirmed that the judge's actions were within the scope of the statutory authority and did not constitute an error of law. The conviction under section 71(1)(a) of the Act was upheld, and the court did not find any grounds for rectifying the injustice to the applicant. The final orders of the court confirmed the defendant's conviction for trafficking in a drug of dependence, with the aggravating circumstance of trafficking in "not less than commercial quantity."

Orders