R v HOANG No. SCCRM-02-130 [2002] SASC 262

Court of Criminal Appeal Perry, Williams & Gray JJ

PERRY J I agree that the appeal should be dismissed for the reasons given by Gray J.

In my experience, when the Crown case is that the accused has possession of a prohibited substance for sale, the information is ordinarily cast in terms alleging only that offence. This is as it should be. As Bray CJ observed in Lafitte v Samuels:[1]

"Prosecutors should make up their minds what they want to charge and then boldly charge it."

On the other hand, if the Crown is in genuine doubt as to which of the modes of committing the offence prescribed in s 32(1)(e) applies, an information is not bound for duplicity if it alleges possession for the purpose of sale or supply, or even sale, supply, or administration.

The accused may always seek particulars as to which is said to apply. But the court may not think it proper for any further particularity to be given, if the evidence to be led by the Crown falls short of identifying which mode of committing the offence applies.

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.

If, on the other hand, possession for sale only is alleged, or possession for supply, if invoked, the presumption will operate with respect to the charge alleged and that alone.

8. WILLIAMS J For the reasons given by Perry J and Gray J I agree that the appeal should be dismissed.

The appellant Van Tan Hoang was convicted on his plea of guilty to possessing heroin for sale or supply. The information initially charged the offence of possessing heroin for sale. The information provided:

Possessing Heroin for sale. (Section 32(1)(e) of the Controlled Substances Act, 1984).

Van Tam Hoang on the 4th August, 2000 at West Croydon, knowingly had heroin, a prohibited substance, in his possession for the purpose of selling it to another person."

On 21 February 2002 with the consent of counsel for the appellant the learned trial judge amended the information by including the words "or supply". The offence charged now became possessing heroin for sale or supply. The particulars were amended so that the final words read "for the purpose of selling or supplying it to another person."

The appellant pleaded guilty to the amended charge in the presence of the jury. He did so in the knowledge that the judge would then hear submissions as to whether the offence was aggravated by the appellant being in possession of the heroin for the purpose of selling at least some of it.

A disputed facts hearing was conducted by the judge. It was the Crown case that the appellant possessed the heroin for the purpose of sale and the appellant's case was that he possessed the heroin for supply. The judge found that the Crown had proved beyond reasonable doubt that the appellant "intended that part at least of the heroin would be sold to others". He sentenced the appellant on that basis.

Notwithstanding the plea of guilty counsel for the appellant submitted that the conviction could be challenged. It was contended that section 32(1)(e) of the Controlled Substances Act 1984 (SA) created three separate offences. The section provided:

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."

It was submitted that the information as amended was duplicitous. It was said that to possess heroin for sale was a separate and distinct offence from possessing heroin for supply. It was contended that notwithstanding the consent of the appellant the amended information was bad. Consequently the plea of guilty was not an effective confession.

A plea to a duplicitous information is not an effective plea. If section (32)(1)(e) created more than one offence it follows that the information was bad for duplicity. It is appropriate for this court to entertain the appeal against conviction notwithstanding the plea. The Crown did not oppose this course.

On appeal counsel for the Crown submitted that section 32(1)(e) of the Controlled Substances Act created only one offence. An accused person can be guilty of that offence if in possession of the drug for one of the purposes specified in the information, in this case sale or supply. Given that the appellant had admitted the elements of the offence it was said to be for the judge in accordance with usual sentencing principles to determine whether the possession was for the purpose of sale or for the purpose of supply.

The Crown alleged that the appellant was in possession of the heroin for the purpose of sale. It was said that having regard to section 44 of the Controlled Substances Act this was a matter of aggravation. 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 -

(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 an application for forfeiture of property has been made under the Criminal Assets Confiscation Act 1996 in respect of that financial gain)..."

Counsel accepted that the Crown carried the burden of establishing any circumstances of aggravation beyond reasonable doubt[2]. It was said that the procedures following the plea of guilty were in accordance with established sentencing principles and the judge's findings were open on the evidence before him.

The central issue for resolution is whether the information is duplicitous. The answer to that question involves a consideration of section 32(1)(e) and a determination of whether the section creates only one offence. A key aspect is the use of the word "or" within the Controlled Substances Act.

In Ex parte Polley; Re McLennan[3] Jordan CJ observed:

"The question whether an enactment creates one offence or several depends upon its subject matter and language considered in the context ... But the mere use of the word "or" does not show that it is intended to create two offences. It may sufficiently appear that it is intended to create only one offence of a particular type and to supply one or more instances".

In Romeyko v Samuels[4] Bray CJ stated:

"The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow."

After finding that the section[5] created one offence Bray CJ went on to observe:

"That does not mean, however, that I think the complaint was properly drawn. Clearly, in my view, it was not. The pleader has been curiously selective. In my view, if it is intended to allege that the postal article in question possess more than one of the forbidden characteristics, then they should be mentioned conjunctively, not disjunctively, and if any of those characteristics is not intended to be alleged it should not be mentioned at all. I could, perhaps, conceive of a rare case where the prosecutor was really in doubt as to which of the forbidden characteristics was present but thought that he could prove that at least one of them must have been, as if, for example, he was not really sure whether an inability to exercise effective control over a car was due to drink or to drugs but was sure that it must have been due to one of them. Even then I should have thought it might ordinarily be better to allege the two conjunctively instead of disjunctively. This usage is hallowed by antiquity. There are early examples of pleadings where "or" in the statute is changed to "and" in the information; see the Crown Circuit Companion (1790) pp 149-151".

Bray CJ made similar observations in Lafitte v Samuels[6]. After holding that behaving in a disorderly or offensive manner contrary to Section 7 of the Police Offences Act 1967 (SA) created only one offence Bray C J continued:

"If it is intended to contend that the act was both disorderly and offensive, the adjectives should be connected by "and" and not by "or": if it is only intended to contend that one adjective applies, the other should not be included in the complaint. Prosecutors should make up their minds what they want to charge and then boldly charge it, if necessary in two counts in the alternative; they should not, in my view, strive to be as vague as possible in the hope that out of several ambiguities in the complaint one will ultimately be found to fit the evidence after it is all in."

In R v Collins[7] the court considered the construction of section 6(1) of the Misuse of Drugs Act 1981 (WA) and held that the section created only one offence. That section has close parallels to section 32(1)(e) of the Controlled Substances Act.

(a) with intent to sell or supply it to another, has in his possession;

a prohibited drug commits an indictable offence..."

"In my opinion the explanation offered in mitigation was inconsistent with the plea of guilty. By the plea the applicant admitted that he was in possession of the 1.2 kg with intent to sell or supply to another. By s11 of the Misuse of Drugs Act when read with Sch 5, possession of 100 g of cannabis or more is presumed to be possession with intent to sell or supply to another, in the absence of proof to the contrary. Both the admission by the plea and the presumption apply to the whole of the 1.2 kg. The Act draws no distinction between an intention to sell or an intention to supply. There are not two separate offences but one offence of possession with intent to sell or supply. The essence of the offence is possession with intent to distribute the drugs. No doubt, a case which involves an intention only to supply to friends on a casual basis may attract a lesser sentence than a case which involves an intention to sell on a commercial basis."

"The relevant element of the offence is the applicant having the drug concerned with the intent to sell or supply it to another person. Section 11 provides that a person in the position of the applicant shall, unless the contrary is proved, be deemed to have the drug in his possession with that intent if he has in his possession a quantity in excess of the prescribed quantity. If the presumption applies, as it does in this case, then it applies to the whole of the drug in his possession and that is the offence for which he is being sentenced. There could be no question of the Crown, as a result of the plea, carrying any onus to show the purpose of the possession. It matters not that it is unknown whether it is for sale or supply as the purpose of the statute, underlined by its severe penalties, is to prevent the further distribution of this drug".[10]

Section 32(1)(e) of the Controlled Substances Act was enacted to prohibit the possession of drugs for distribution whether by sale or supply or administration. Possession for these purposes has been treated seriously by Parliament. This is demonstrated by the heavy penalties that have been prescribed. It is of significance that the penalties set out in the Controlled Substances Act do not differentiate between sale or supply or administration.

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.

Further support for allowing sale or supply to be pleaded in the alternative in an information charging an offence can be found in Rule 5(1) of the Third Schedule to the Criminal Law Consolidation Act 1935 (SA):

"Where an enactment constituting an offence states the offence to be the doing or the omission to do any one of any different acts in the alternative, or the omission to do any act in any one of any different capacities, or with any one of any different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities or intentions or other matters stated in the alternative in the enactment, may be stated in the alternative in the count charging the offence."

This rule provides a strong indication that a single charge alleging possession for sale or supply would not be bad for duplicity[11].

In addition, the presumption in Section 32(3) of the Controlled Substances Act has been expressed disjunctively:

"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." (emphasis added)

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 Act is to prevent distribution of the drug. The precise purpose is not an essential ingredient of the offence.

Parliament had in mind that section 32(1)(e) created the one offence. In the second reading speeches from both the Legislative Council and the House of Assembly no distinction is drawn between sale and supply[12]. This further demonstrates that it was Parliament's intention to prohibit distribution of drugs irrespective of the method.

This analysis leads to the conclusion that section 32(1)(e) creates the one offence. The appellant's plea of guilty was a solemn confession to each of the ingredients of the charge namely the possession of heroin for the purpose of sale or supply. It remained for the judge as part of the sentencing process to determine whether the purpose was as the Crown alleged for sale, or as the appellant alleged for supply.

The procedure following the plea of guilty accorded with established sentencing principles. The judge's findings were open on the evidence.

For these reasons the appeal must be dismissed.

LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT

1 (1972) 3 SASR 1 at 6.

2 R v Anderson [1993] HCA 59; (1992-1993) 177 CLR 520; R v Olbrich [1999] HCA 54; (1999-2000) 199 CLR 270; R v Lobban (2001) 80 SASR 550; Cheung v R [2001] HCA 67; (2001) 185 ALR 111

3 [1947] NSWStRp 27; (1947) 47 NSW SR 391 at 392

4 (1972) 2 SASR 529 at 552

5 Section 107 of the Post and Telegraph Act 1901 (Cth) which read as follows:- "Any person who knowingly sends or attempts to send by post any postal article which - ....(c) has thereon or therein or on the envelope or cover thereof any words marks or designs of an indecent obscene blasphemous libellous or grossly offensive character...".

6 (1972) 3 SASR 1 at 6

7 (1993) 67 A Crim R 104

9 (1993) 67 A Crim R 104 at 109-110

10 See also R v Marinovich & Ors [1990] WASC 226; (1990) 46 A Crim R 282; R v Reed (1993) 65 A Crim R 464; R v Pelham (1995) 82 A Crim R 455

11 See Heath, Indictable offences in Victoria (2nd ed, 1988) at pp 90-95

12 Hansard 8 December 1983 2516 et seq, 11 April 1984 3529 et seq, 28 August 1986 732 et seq, 23 October 1986 1445 et seq

[1] (1972) 3 SASR 1 at 6.

[2] R v Anderson [1993] HCA 59; (1992-1993) 177 CLR 520; R v Olbrich [1999] HCA 54; (1999-2000) 199 CLR 270; R v Lobban (2001) 80 SASR 550; Cheung v R [2001] HCA 67; (2001) 185 ALR 111

[3] [1947] NSWStRp 27; (1947) 47 NSW SR 391 at 392

[4] (1972) 2 SASR 529 at 552

[5] Section 107 of the Post and Telegraph Act 1901 (Cth) which reads as follows:

"Any person who knowingly sends or attempts to send by post any postal article which

- ....(c) has thereon or therein or on the envelope or cover thereof any words marks or designs of an indecent obscene blasphemous libellous or grossly offensive character...".

[6] (1972) 3 SASR 1 at 6

[7] (1993) 67 A Crim R 104

[8] (1993) 67 A Crim R 104 at 106

[9] (1993) 67 A Crim R 104 at 109-110

[10] See also R v Marinovich & Ors [1990] WASC 226; (1990) 46 A Crim R 282; R v Reed (1993) 65 A Crim R 434.

R v Pelham (1995) 82 A Crim R 455

[11] See Heath , Indictable Offences in Victoria (2nd ed, 1988) at pp 90-95

[12] Hansard 8 December 1983 2516 et seq, 11 April 1984 3529 et seq, 28 August 1986 732 et seq, 23 October 1986 1445 et seq