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…

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 Tennant (No 2)

Details

AGLC: R v Tennant (No 2) [2010] SASCFC 26
Case: [2010] SASCFC 26
Decision Date: 27 August 2010

CaseChat Overview and Summary

The appellant, R v Tennant, was convicted of cultivating a controlled plant for sale contrary to s 33B(3) of the Controlled Substances Act 1984 (SA), having been acquitted of a charge of trafficking in a large commercial quantity of a controlled drug. The appeal concerned whether the cultivating offence, which the appellant argued should be treated as a summary offence, was properly joined with the major indictable trafficking offence. The matter was heard in the District Court of South Australia.

The central legal issue before the court was whether the offence of cultivating a controlled plant for sale, as defined by s 33B(3) of the Controlled Substances Act, was properly joined with a major indictable offence in the same information, and consequently, whether the District Court had jurisdiction to hear and determine it. This required an interpretation of s 102 of the Summary Procedure Act 1921 (SA), which governs the joinder and separation of charges, and the classification of offences into summary, minor indictable, and major indictable categories.

The court dismissed the appeal, holding that the cultivating offence was to be treated as a summary offence for the purposes of the Summary Procedure Act. However, pursuant to s 102(2) of the Summary Procedure Act, this summary offence could be properly joined with a major indictable offence in the same information. Furthermore, s 102(3) stipulated that where a major indictable offence is included, all joined summary offences would be dealt with according to the procedures applicable to major indictable offences. Therefore, the District Court possessed the jurisdiction to hear and determine both charges.

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

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Ratio Decidendi

Legal Principle Established

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.