R v Tennant (No 2) - [2010] SASCFC 26

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TENNANT (No 2)
[2010] SASCFC 26
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice David)
27 August 2010
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - OF COUNTS - BY STATUTE - OTHER CASES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PRODUCTION OR CULTIVATION
Appeal against conviction – appellant charged with cultivating a controlled plant for sale contrary to s 33B(3) of the Controlled Substances Act 1984 (SA) (“the Controlled Substances Act”) and trafficking in a large commercial quantity of a controlled drug contrary to s 32(1) of the Controlled Substances Act – trafficking offence is a major indictable offence – appellant acquitted of trafficking offence but convicted of the offence of cultivating a controlled plant for sale – whether s 33B(4) required the offence of cultivating to be heard and determined summarily.
HELD: appeal dismissed – cultivating offence to be treated as a summary offence for the purposes of the Summary Procedure Act 1921 (SA) but was properly joined with the major indictable offence pursuant to s 102(2) of the Summary Procedure Act 1921 (SA) – District Court had jurisdiction to hear and determine the offence.
Controlled Substances Act 1984 (SA) s 33B, s 32(1), s 33LA(1); Summary Procedure Act 1921 (SA) s 5(1), s 5(2), s 102; Acts Interpretation Act 1915 (SA) s 44(1); District Court Act 1991 (SA) s 9(3), referred to.
R v Adams (1995) 66 SASR 284; Maroondah City Council v Fletcher & Anor (2009) 169 LGERA 407; Commissioner of Stamp Duties v Permanent Trustees Co Ltd (1987) 9 NSWLR 719, considered.

R v TENNANT (No 2)
[2010] SASCFC 26
Court of Criminal Appeal: Doyle CJ, Duggan and David JJ

DOYLE CJ: I would dismiss the appeal for the reasons given by Duggan J.
DUGGAN J: The appellant was charged on an information which alleged the commission of three offences contrary to the Controlled Substances Act 1984 (SA) (“the Controlled Substances Act”). It was alleged that the appellant cultivated a controlled plant for sale (s 33B(3)), trafficked in a large commercial quantity of a controlled drug (s 32(1)), and possessed equipment prescribed by regulation (s 33LA(1)).
The information was filed in the Elizabeth Magistrates Court and the appellant was committed for trial to the District Court on the three charges.
A decision was then made not to proceed with the charge of possessing prescribed equipment and the Director of Public Prosecutions (“the DPP”) filed a fresh information in the District Court charging the appellant with the first two counts in the original information.
The appellant pleaded not guilty to the charges. At the conclusion of the prosecution case the trial Judge found that there was no case to answer on the trafficking charge and the jury were directed to find the appellant not guilty on that charge.
The appellant was convicted by verdict of the jury on the count of cultivating a controlled plant for sale contrary to s 33B(3) of the Controlled Substances Act.
The appellant contends that the District Court had no jurisdiction to hear the offence charged under s 33B(3) and that the count charging this offence should not have been included in the information filed in that Court. This issue was not raised before the trial Judge.
Section 33B of the Controlled Substances Act provides as follows:
33B—Cultivation of controlled plants for sale
(1)[irrelevant]
(2)[irrelevant]
(3)A person who cultivates a controlled plant intending to sell it or any of its products or believing that another person intends to sell it or any of its products is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
(4)An offence against subsection (3) involving a cannabis plant (and not involving any other controlled plant) must be prosecuted, and dealt with by the Magistrates Court, as a summary offence but if the Court determines that a person found guilty of such an offence should be sentenced to a term of imprisonment exceeding 2 years, the Court must commit the person to the District Court for sentence.
(5)If, in any proceedings for an offence against subsection (1), (2) or (3), it is proved that the defendant cultivated a trafficable quantity of a controlled plant, it is presumed, in the absence of proof to the contrary, that the defendant had the relevant intention or belief concerning the sale of the plants or their products necessary to constitute the offence.
(Emphasis added)
Counsel for the appellant places particular reliance on subsection (4). It is argued that the subsection confers exclusive jurisdiction on the Magistrates Court to hear and determine a charge laid pursuant to s 33B(3) where the allegation is that there was cultivation of a cannabis plant.
The DPP contends that the charge under s 33B(3) was properly joined in the information with the charge of trafficking in a large commercial quantity of a controlled drug, which is a major indictable offence. The DPP relies on s 102 of the Summary Procedure Act 1921 (SA) (“the SPA”) in support of the contention that both offences were triable by the District Court. Section 102 provides:
102—Joinder and separation of charges
(1)A person may be charged with any number of offences in the same information (either cumulatively or in the alternative) if the charges arise from the same set of circumstances or from a series of circumstances of the same or a similar character.
(2)The charges joined in the same information under subsection (1) may include charges of the following three classes or any two of those classes:
(a)     major indictable offences;
(b)     minor indictable offences;
(c)     summary offences.
(3)Subject to subsection (3a) if an information contains a charge of a major indictable offence, all charges of minor indictable or summary offences included in the same information will be dealt with according to the procedures applicable to major indictable offences and if the information includes a charge of a minor indictable offence, but no charge of a major indictable offence, all charges of summary offences included in the same information will be dealt with according to the procedures applicable to minor indictable offences (but the penalty that may be awarded for an offence is unaffected by the fact that the offence is dealt with according to procedures applicable to offences of a more serious class).
(3a)Where a person has been committed to a superior court for trial on an information which includes charges for both indictable offences and summary offences, the superior court may, if it thinks fit, order that the charges of summary offences be remitted to the Magistrates Court and dealt with in the same way as if the offences had been charged in a complaint.
(4)The Court may direct that—
(a)     charges contained in a single information be dealt with in separate proceedings; or
(b)     charges contained in separate informations be dealt with together in the same proceedings.
(Emphasis added)
Section 5(1) of the SPA provides that offences are divided into summary offences and indictable offences, the latter comprising minor indictable offences and major indictable offences. Section 5(2) defines a summary offence as follows:
(2)A summary offence is—
(a) an offence that is not punishable by imprisonment;
(b) an offence for which a maximum penalty of, or including, imprisonment for two years or less is prescribed;
(ba) an offence against Part 4 of the Criminal Law Consolidation Act 1935 involving $2 500 or less not being— [the subsection then identifies various exclusions, none of which are relevant for present purposes].
In addition to these categories, it is not uncommon for legislation to provide that offences against a particular Act or Regulation “shall be disposed of summarily”.[1]
[1] See Workers Rehabilitation & Compensation Act 1986 (SA) s 122(3); Education Act 1972 (SA) s 105(1); Air Navigation Act 1937 (SA) s 9; Explosives Act 1936 (SA) s 56.
The effect of such a provision is described in s 44(1) of the Acts Interpretation Act 1915 (SA) (“the Acts Interpretation Act”) which provides:
44– Interpretation of references to summary proceedings
(1)Where it is provided in any Act that proceedings for offences are to be dealt with, or disposed of, summarily or before a special magistrate or one or more justices, those offences will be dealt with under the Summary Procedure Act 1921 as summary offences.
In my view it follows that, where there is a statutory direction that an offence is to be disposed of summarily, the offence is to be treated for all purposes as a summary offence and the SPA provides the relevant procedure for dealing with it. The provisions in the SPA applicable to a summary offence include the manner in which it can be charged. Section 102 of the SPA is of relevance here. This section is found in Part 5 of the SPA which deals with indictable offences. However, s 102 authorises the joinder of a summary offence with an indictable offence in an information.
This construction receives support from the purpose of s 102. In R v Adams[2] the Court considered the effect of s 102 in conjunction with s 9(3) of the District Court Act 1991 (SA) which states:
(3)The Court’s jurisdiction to try, convict or sentence for a summary offence exists only where the offence is charged in the same information as an indictable offence.
Although Lander J dissented in the result, Cox J agreed generally with his analysis of the legislation. Lander J said:[3]
The scheme of the legislation is to keep together all charges for offences that arise out of the same set of circumstances. That is, of course, desirable for a number of reasons. It allows, subject to the overriding discretion to grant separate trials on separate charges, for the one trial of all offences arising out of the same facts, and in that sense, achieves the ends of the administration of justice. It allows for the one court to be aware of and to participate in the sentencing process, so that the possibility of two courts adopting different and conflicting sentencing regimes is avoided. Moreover, it allows the court to do all of that within the exercise of its own jurisdiction, so that the judicial officer does not at the one time have to sit in separate courts. The scheme, on the face of it, allows for the one court to hear all those matters properly joined in the one court. A defendant who is tried and sentenced for a summary offence, which is an offence charged in the same information as an indictable offence is tried and sentenced in the District Court by a District Court judge.
[2] (1995) 66 SASR 284.
[3] (1995) 66 SASR 284 at 294.
This rationale applies with as much force to the joinder of offences which legislation directs are to be tried summarily as it does to joinder of summary offences as defined in s 5(2) of the SPA. A construction which would permit the application of s 102 to the second category but not to the first category would result in the disharmonious operation of the relevant statutes.[4] As Warren CJ and Osborn AJA said in Maroondah City Council v Fletcher & Anor:[5]
Where construction of separate but related legislation is simultaneously required, the object is to arrive at a construction of the provisions which assumes that Parliament intended its legislation to operate harmoniously or, in other words, rationally, efficiently and justly together.[6]
[4] Commissioner of Stamp Duties v Permanent Trustees Co Ltd (1987) 9 NSWLR 719 at 725.
[5] (2009) 169 LGERA 407 at [85].
[6] Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 724 per Kirby P.
Counsel for the appellant points out that s 33B(4) makes specific reference to the offence being dealt with in the Magistrates Court. However, the drafter may have had in mind the somewhat unusual operation of s 33B. Subsection (3) creates a major indictable offence. The effect of subsection (4) is to prescribe a separate procedure for offences against subsection (3) which involve the cultivation of cannabis plants. Subsection (4) directs that a charge under subsection (3) which involves cultivating a cannabis plant is to be prosecuted and dealt with as a summary offence. In these circumstances, the hybrid aspect with which the offence is invested renders it appropriate to clarify in what court the matter would ordinarily be heard.
Where an offence against s 33B(4) is the only offence charged, the operation of the section is straightforward. The proceedings take place entirely in the Magistrates Court unless, upon conviction, the Court considers that the defendant should be sentenced to a term of imprisonment exceeding two years. In that event the defendant must be committed to the District Court for sentence.
However, if joinder under s 102 of the SPA is otherwise appropriate and the offences under consideration include both an indictable offence and an offence of cultivating cannabis under s 33B(3) there would seem to be no reason why the procedure under s 102 should not be invoked. Resort to the joinder provisions contained in that section is not expressly excluded by s 33B(4) of the Controlled Substances Act and, in my view, there is no room for any implied exclusion.
I have reached the conclusion that the count alleging the offence of cultivating a controlled plant for sale contrary to s 33B(3) of the Controlled Substances Act was properly joined pursuant to s 102(2) of the SPA with the offence of trafficking in the information on which the appellant was tried in the District Court and that the District Court had jurisdiction to hear and determine both charges.
I would dismiss the appeal.
DAVID J: I agree the appeal should be dismissed for the reasons given by Duggan J.