Attorney-General v Arkinstall - [2013] TASCCA 12

[2013] TASCCA 12

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Attorney-General v Arkinstall [2013] TASCCA 12

PARTIES:  ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
  v
  ARKINSTALL, Alan Robert

FILE NO:  661/2013
DELIVERED ON:  13 November 2013
DELIVERED AT:  Hobart
HEARING DATE:  21 August 2013
JUDGMENT OF:  Blow CJ, Tennent and Pearce JJ

CATCHWORDS:

Criminal Law – Procedure – Summing-up – Drug trafficking – Reverse onus when accused in possession of trafficable quantity of drug – Evidence of possession of trafficable quantity emerging from evidence of accused – Whether discretion not to direct jury as to reverse onus provision because of unfairness.

Misuse of Drugs Act 2001 (Tas), s12(2).
King v R (1986) 161 CLR 423, distinguished.
Aust Dig Criminal Law [3162]

REPRESENTATION:

Counsel:
             Appellant:  D G Coates SC, S Karpeles
             Respondent:  T K Jago SC
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission

Judgment Number: [2013] TASCCA 12
Number of paragraphs: 45

Serial No 12/2013
File No 661/2013

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
v ALAN ROBERT ARKINSTALL

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
TENNENT J
PEARCE J
13 November 2013

Orders of the Court

Leave to appeal granted.

Appeal allowed.

Serial No 12/2013
File No 661/2013

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
v ALAN ROBERT ARKINSTALL

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW CJ
13 November 2013

I have read the reasons of Tennent J and Pearce J in draft form. I agree that leave to appeal should be granted, the appeal allowed, and no other order made. Subject to the comments below, I agree with their reasons.

Because the respondent gave evidence at his trial of having bought 25 "dots" of LSD, the learned trial judge was obliged to direct the jury, in accordance with s12(2) of the Misuse of Drugs Act 2001, that, if they were satisfied beyond reasonable doubt that he had had 20 or more units of LSD in his possession during the relevant period, they were to presume that he intended to sell at least some of that drug unless he proved otherwise on the balance of probabilities. I agree with Tennent J that there could never be circumstances that could warrant not giving such a direction after evidence of possession of a trafficable quantity of a drug has been given. If there were circumstances that would make the giving of such a direction so unfair that a miscarriage of justice would result, then a question might arise as to whether it would be appropriate to abort a trial, or even to stay proceedings. I do not wish to suggest that such a course could ever be appropriate, since no such question arises in this case. In this case, because of the way that evidence of possession of 25 "dots" came out, there is no reason to think that the Crown acted unfairly. The jury should have been directed in accordance with s12(2).

File No 661/2013

ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
v ALAN ROBERT…

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 Attorney-General v Arkinstall

Details

AGLC: Attorney-General v Arkinstall [2013] TASCCA 12
Case: [2013] TASCCA 12
Decision Date: 13 November 2013

CaseChat Overview and Summary

The Attorney-General appealed against a decision of the trial judge in the Supreme Court of Tasmania. The appeal concerned the trial judge's refusal to direct the jury on the operation of a reverse onus provision under the *Misuse of Drugs Act 1984* (Tas) in relation to a charge of trafficking in a controlled substance. The accused had been found in possession of a quantity of methylamphetamine, and evidence suggesting the quantity was trafficable had emerged during the course of the trial, including from the accused's own evidence.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the trial judge had erred in exercising their discretion not to direct the jury on the reverse onus provision. This provision, found in section 40(1) of the *Misuse of Drugs Act 1984* (Tas), deems a person in possession of a trafficable quantity of a controlled drug to be in possession for the purpose of trafficking, unless the contrary is proved. The question was whether, in the specific circumstances of the trial, directing the jury on this provision would have been unfair to the accused.

The Full Court reasoned that the trial judge's discretion to refrain from directing the jury on the reverse onus provision should only be exercised in exceptional circumstances where such a direction would be demonstrably unfair. In this instance, the evidence of the quantity being trafficable had become apparent during the trial, and the accused had not been taken by surprise. The Court held that the trial judge had misapplied the principles governing the exercise of this discretion, and that a direction on the reverse onus provision was appropriate.

The Court granted leave to appeal and allowed the appeal, setting aside the acquittal and ordering a new trial.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

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

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