R v Valesic

Case [2018] SASCFC 136

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v VALESIC

[2018] SASCFC 136

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Hinton)

17 December 2018

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - IN GENERAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE

Appeal against conviction for trafficking in a controlled drug.

The applicant was found guilty by a jury of one count of trafficking in a controlled drug, namely methylamphetamine, contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (the Act).

On 2 April 2013, a police patrol stopped to examine a parked vehicle. The officers found the applicant reclined in the driver’s seat and three resealable plastic bags each containing a white crystalline substance. The contents of each of the bags, which in total weighed 7.5 grams, was analysed and found to contain methylamphetamine. Officers also found other items, including a number of glass pipes and unused syringes, a ‘tick list’ and cash in the amount of $710.

The prosecution adduced expert evidence as to typical indicia of participation in drug trading and the usual street level purity of methylamphetamine. At the close of the Crown case, defence counsel submitted that there was no case to answer. The Judge dismissed the application and found the substance to be a controlled drug within the meaning of s 4 of the Act.

On 11 September 2015, the applicant was sentenced to imprisonment for one year, three months and three weeks, which was suspended upon him entering into a good behaviour bond for a two-year period.

The applicant’s first notice of appeal was filed on 28 May 2018, more than three years out of time, only after the applicant breached the bond imposed in 2015. The applicant sought an extension of time within which to appeal.

Held, per Peek J (Stanley and Hinton JJ agreeing), refusing the application to extend time and dismissing the appeal:

1. Despite its very low level of purity, the trial Judge did not err in directing the jury that the 7.5 grams of mixed substance constituted “methylamphetamine”. The relevant consideration is the total weight of the mixed substance, not a calculated weight of the pure methylamphetamine contained within the mixture. Paul v Collins Jnr [2003] WASCA 238 applied. Williams v The Queen (1978) 140 CLR 591 distinguished.

2.  The trial Judge did not err in finding that there was a case to answer; 7.5 grams of…

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R v Valesic [2018] SASCFC 136
Case
[2018] SASCFC 136
Decision Date

CaseChat Overview and Summary

The applicant, Nedeljko Valesic, appealed his conviction for drug trafficking. The appeal was heard by Peek, Stanley, and Hinton JJ. The central dispute concerned whether the quantity of methylamphetamine found in the applicant's possession constituted a "trafficable quantity" under the relevant legislation, particularly in light of the drug being mixed with other substances.

The court was required to determine whether the verdict of guilty was unreasonable, unsafe, or unsatisfactory, and whether to admit fresh evidence in the form of a statement from a professor regarding the visibility and potential effects of trace amounts of methylamphetamine. The legal issues also encompassed the correct interpretation of the legislation defining a "trafficable quantity" of a controlled drug in a mixture, and whether the principles established in *Williams v The Queen* were applicable to the present case.

The court reasoned that the verdict was not unreasonable, unsafe, or unsatisfactory, finding that it was open to the jury to return a guilty verdict based on the evidence presented. Regarding the proposed fresh evidence, the court found that it would not have assisted the applicant's case. The report from Professor White indicated that even a trace amount of methylamphetamine could be visible and potentially have a mild stimulant effect, which could paradoxically support the Crown's case rather than the appellant's. The court also clarified the operation of section 32(5) of the relevant Act and the Controlled Substances Regulations, which define a trafficable quantity of methylamphetamine in a mixture as two grams. This definition, the court held, does not require a minimum purity level of the drug within the mixture, and the presumption of trafficking arises if the total weight of the mixture meets or exceeds the prescribed amount. The court distinguished the present case from *Williams v The Queen*, finding that the legislative framework and the facts of this case did not align with the principles applied in *Williams*.

The appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Applying the precepts in M v The Queen,[32] it is clear that the verdict is not unreasonable, unsafe or unsatisfactory. On the whole of the evidence, it was well open to the jury to return a verdict of guilty and I have no doubt of his guilt.[33][32] (1994) 181 CLR 487, 493.[33] M v The Queen (1994) 181 CLR 487, 493; SKA v The Queen (2011) 243 CLR 400, 405-406.The application to introduce fresh evidence In addition to the application for an extension of time within which to appeal on the proposed grounds of appeal before the permission Judge, the applicant also seeks an extension of time within which to file a further ground of appeal to introduce fresh evidence (dated 9 October 2018). It is as follows:The appellant Nedeljko Valesic Seeks to tender fresh evidence in the form of a statement of Professor Jason M White, Adjunct Professor, School of Pharmacy and Medical Sciences, University of South Australia, dated 5 October 2018 in the proceedings before the learned court.GroundsThe grounds relied upon are as follows:I.The appellant was not advised of the possibility, or necessity, to adduce such evidence at the trial.II.The evidence is credible and could have resulted in an acquittal.III.The evidence was a necessary part of the trial proceedings given the questions to be decided by both the judge and the jury and neither the prosecuting, nor defence, counsel adduced the evidence.IV.The failure to call the evidence has resulted in a miscarriage of justice. The affidavit of Lisa Tehan (an employee of Mr Vadasz) exhibits a short report supplied by Professor White to Mr Vadasz as follows:In response to your questions regarding this matter:1.A trace (defined as less than 0.01 grams) may be discernible to the naked eye, depending on the form of the methamphetamine and exactly how much was present, but would be a very small amount. By comparison, 1.0 gram of pure crystalline methamphetamine is about the volume of a 20 cent piece. A trace is less than one hundredth of this volume so would be barely visible. If the methamphetamine is in a powder form then 1.0 gram will occupy about two tablespoons. Again, less than one hundredth of this is a very small quantity that may be just visible.2.An amount less than 0.01 grams would produce little or no effect if consumed. By comparison, a ‘point’ of relatively pure illicit methamphetamine would contain around 0.08 grams of the drug and an amount around 0.01 grams is a threshold level for most people to obtain a mild degree of stimulation. Thus, the effects of a trace amount could range from no effect to a very mild degree of stimulation. One major problem for the applicant is that the report replies to questions from Mr Vadasz which are predicated on the assumption that the decision of the High Court in Williams v The Queen[34] governs the present case. But, for the reasons stated above, that assumption is incorrect.[34] (1978) 140 CLR 591. I should add, that even if the contention that the Williams doctrine applies to the notional amount of extractable methylamphetamine were to be accepted (contrary to the views expressed above), the report here would tend to suggest that the present amount of pure methylamphetamine here would not correspond very closely at all with the minute amount of cannabis under consideration in Williams. I accept the following submission of prosecution counsel:… the report of Professor White in my submission would not have assisted the no case submission in a manner favourable to the appellant. That submission really assumes the court finding in favour of the prosecution on grounds 1 and 2, but even for the sake of the argument if we accept Mr Vadasz’s Williams submission about visibility, well in the abstract apparently it is still visible. Secondly, the fact that it might still have a mild stimulant effect in my submission is still plainly relevant to the objects of the Act and s 32(3) applying to trace or small quantities of the drug. So in a very real sense in my submission the proposed fresh evidence paradoxically would have assisted the Crown case and not the other way around in relation to Mr Valesic.

Decision

Reasons for decision

PEEK J
The concept of “a mixture” is based on the recommendations of chapter 6 on ‘Serious Drug Offences’ of the Model Criminal Code (1998), which underpinned the ‘important change’ in our legislation that came into effect in 2007;[14] it established a spectrum or ‘continuum’ of controlled substances, the concentration of which may range from extremely high to extremely low. The definition of what constitutes a trafficable quantity in relation to a quantity of a mixture that equals or exceeds the prescribed amount of two grams would appear to be clear. In R v Nguyen, White J explained the operation of the presumption in relation to the possession of at least 2 grams of a mixture containing methylamphetamine or heroin thus:[15][63] In summary, the quantity prescribed in the Regulations for a mixture containing either heroin or methylamphetamine is 2 grams. The effect of s 32(5) and of the Regulations therefore is that if a trier of fact is satisfied that a defendant had possession of at least 2 grams of a mixture of which part was either heroin or methylamphetamine, the defendant is to be presumed to have possession of that drug with the intention of selling it, unless the defendant proves the contrary. This would be so even if the controlled drug comprised a relatively minor proportion of the overall mixture.[64] The Regulations do not contain any specification of a “trafficable quantity” of either heroin or methylamphetamine in their pure form, which probably reflects the fact that these drugs are invariably adulterated when sold in small quantities.[14] R v Young (2016) 126 SASR 41, [169]-[177]; South Australia, Parliamentary Debates, House of Assembly, 21 September 2005, 3504 (MJ Atkinson); Model Criminal Code Officers Committee, Parliament of Australia, Model Criminal Code – Chapter 6: Serious Drug Offences (October 1998), 273.[15](2010) 108 SASR 66, 69-70.The decision of the High Court in Williams v The Queen Rather than relying on the correct interpretation of the legislation, the appellant submitted that the present case comes within an over-arching principle established by the High Court in Williams v The Queen.[16][16] (1978) 140 CLR 591. In Williams, Gibbs J (with whom Mason and Jacobs JJ agreed) constituted the plurality. Gibbs J summarised the facts as follows:[17][17] (1978) 140 CLR 591, 594.[3] The relevant evidence for the Crown was given by Constable Guild and Mr Kleinschmidt, a botanist. Constable Guild found fragments of green leaf material in the pockets of two coats belonging to the applicant. When asked, “What is the green leaf material?” the applicant replied, “Probably cannabis.” In response to the further question, “Is it yours?”, he said, “If it’s cannabis, it would be.” The pockets of the coats were subsequently examined microscopically by Mr Kleinschmidt and found to contain cannabis sativa (Indian hemp). He said that there were fragments adhering to the bottom of the pockets. He gave the following evidence:Q Now, you’ve examined that material microscopically? - Yes.Q Are you able to say what quantity of the offending material is there?Q Are you able to say whether the . . . the grain or the fine material there, is that substance alone or is it combined with dirt and dust? - There is a lot of other debris there. Yes.Q Would you agree with me that perhaps the amount of pure cannabis there might be of the order micrograms? - Yes.Q Do you agree that both those pockets have sufficiently rumpled linings so that the material can easily be lost between the folds of the … the pockets, themselves? - Yes. Yes.Q Would you agree that from the point of view of the user of the drug, cannabis, there is not a usable quantity in those coats? - This is a moot point, actually. Any quantity is usable but it isn’t … isn’t very much. No. It’s a very small quantity. Q Would you agree, however, that for practical purposes it’s not a practical possibility for someone to extract any usable quantity of the … - I agree. Yes.Q drug? Yes. You’re not able, when you pinch out some of the material to sort it out on your hand and say this is … is dust and this is cannabis and so on? - No, not without the aid of a microscope would I attempt this sort of thing.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

I now turn to consider the merits of the proposed grounds of appeal and the various applications described above.Consideration of grounds 1 and 2 of appeal Grounds 1 and 2 assert that, on a charge of an offence of trafficking contrary to s 32(3) of the Act, there must be some minimum level of purity of a controlled drug such as methylamphetamine when it constitutes only a very small percentage of the mass of a mixed substance found in the defendant’s possession. However, it was not suggested, at trial or on appeal, that the above contention was made out by reference to the correct construction of any of the relevant legislative provisions and regulations which may be briefly summarised as follows.The relevant legislation and regulations A reverse onus provision is created by s 32(5) of the Act which provides:(5)If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—(a) in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—(i)was acting for the purpose of sale of the drug; and(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence; or(b) in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence. The meaning of a “trafficable quantity” is defined in s 4 of the Act as follows:trafficable quantity of a controlled drug or controlled plant means—(a) in relation to a controlled drug contained in a mixture—(i)a quantity of the drug that equals or exceeds the amount prescribed as a trafficable quantity for the drug in its pure form; or(ii)a quantity of the mixture that equals or exceeds the amount prescribed as a trafficable quantity for any mixture containing the drug; or(iii)a number of discrete dosage units of the mixture that equals or exceeds the number of discrete dosage units prescribed as a trafficable quantity for any mixture containing the drug; or(b) in relation to a controlled drug that is not contained in a mixture—a quantity of the drug that equals or exceeds the amount prescribed as a trafficable quantity for the drug in its pure form; or … As to the prescribed amount of a “trafficable quantity” in the present circumstances, Regulation 6 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2000 and Part 2 of Schedule 1 of those Regulations provides that two grams of methylamphetamine is the mixed trafficable amount for the purposes of the presumption in s 32(5) of the Act. The concept of “a mixture” is based on the recommendations of chapter 6 on ‘Serious Drug Offences’ of the Model Criminal Code (1998), which underpinned the ‘important change’ in our legislation that came into effect in 2007;[14] it established a spectrum or ‘continuum’ of controlled substances, the concentration of which may range from extremely high to extremely low. The definition of what constitutes a trafficable quantity in relation to a quantity of a mixture that equals or exceeds the prescribed amount of two grams would appear to be clear. In R v Nguyen, White J explained the operation of the presumption in relation to the possession of at least 2 grams of a mixture containing methylamphetamine or heroin thus:[15][63] In summary, the quantity prescribed in the Regulations for a mixture containing either heroin or methylamphetamine is 2 grams. The effect of s 32(5) and of the Regulations therefore is that if a trier of fact is satisfied that a defendant had possession of at least 2 grams of a mixture of which part was either heroin or methylamphetamine, the defendant is to be presumed to have possession of that drug with the intention of selling it, unless the defendant proves the contrary. This would be so even if the controlled drug comprised a relatively minor proportion of the overall mixture.[64] The Regulations do not contain any specification of a “trafficable quantity” of either heroin or methylamphetamine in their pure form, which probably reflects the fact that these drugs are invariably adulterated when sold in small quantities.[14] R v Young (2016) 126 SASR 41, [169]-[177]; South Australia, Parliamentary Debates, House of Assembly, 21 September 2005, 3504 (MJ Atkinson); Model Criminal Code Officers Committee, Parliament of Australia, Model Criminal Code – Chapter 6: Serious Drug Offences (October 1998), 273.[15](2010) 108 SASR 66, 69-70.The decision of the High Court in Williams v The Queen