Brooke v Turnbull - [2018] ACTMC 15

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Brooke v Turnbull
Citation:	[2018] ACTMC 15
Hearing Dates:	31 July 2017, 14 – 15 December 2017 & 23 July 2018
DecisionDate:	6 August 2018
Before:	Magistrate Theakston
Decision:	See paragraph [58]
Catchwords:	CRIMINAL LAW – resist territory public official – failure to comply with exclusion direction – whether or not exclusion direction lawfully issued – lawful excuse for not complying with exclusion direction DRUG OFFENCES – possess drug of dependence – possession of cocaine – whether or not satisfied beyond reasonable doubt white powder in defendants possession was cocaine POLICE – rights, powers and duties – functions of a territory public official – lawful arrest – use of force – excessive force
Legislation Cited:	Crimes (Serious and Organised Crime) Legislation Amendment Act 2016 (ACT) Crimes Act 1900 (ACT) ss 175, 179, 212, 221, 222 Crimes Prevention Powers Act 1998 (ACT) (Repealed) Criminal Code 2002 (ACT) s 361 Drugs of Dependence Act 1989 (ACT) s 169 Human Rights Act 2004 (ACT) ss 13, 30
Cases Cited:	Elwin v Robinson [2012] WASC 311 R v Austin (No 2) [2010] ACTSC 136 Temoannui v Ford [2009] ACTSC 69
Parties:	Matthew Brooke (Informant) Owen Roscoe Oswald Turnbull (Defendant)
Representation:	Counsel Mr T Trotter (Informant) Mr J Pappas (Defendant)
Solicitors ACT Director of Public Prosecutions (Informant) Ben Aulich & Associates (Defendant)
File Numbers:	CC 12831 of 2016 CC 11404 of 2016 CC 11405 of 2016 CC 11406 of 2016

MAGISTRATE THEAKSTON:

Background

On a Friday evening in October 2016, the defendant was out celebrating his 26th birthday in Canberra City. An incident occurred just before midnight, where police alleged he was in possession of cocaine sitting in lines atop his mobile phone. He was initially arrested, but subsequently released and issued with an exclusion direction. It is alleged that he then failed to comply with that direction. It was also alleged that he later intimidated a police officer and then resisted police when they attempted to arrest him.

The defendant is charged with the following offences:

(a) CC16/12831 – Possess drug of dependence (29 November (sic) 2016) contrary to s 169(1) Drugs of Dependence Act 1989 (ACT);

(b) CC16/11404 – Failing to comply with exclusion direction (29 October 2016) contrary to s 179(1) Crimes Act 1900 (ACT);

(c) CC16/11405 – Resist territory public official (29 October 2016) contrary to s 361(1) Criminal Code 2002 (ACT); and

(d) CC16/11406 – Resist territory public official (29 October 2016) contrary to s 361(1) Criminal Code 2002 (ACT).

A charge of intimidating a territory public official was earlier before the court, but ultimately withdrawn. The defendant entered pleas of not guilty to the remaining charges and a hearing was conducted before me over a number of days.

The following disputes arose during the hearing:

(a)Can I be satisfied that the white powder in the defendant’s possession was cocaine?
(b)Is the offence of possessing a drug of dependence established?
(c)Was the exclusion direction lawfully issued?
(d)Did the defendant have…

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 Brooke v Turnbull

Details

AGLC: Brooke v Turnbull [2018] ACTMC 15
Case: [2018] ACTMC 15
Decision Date: 6 August 2018

CaseChat Overview and Summary

Brooke and Turnbull were charged with offences including resisting a territory public official, possessing a drug of dependence, and failing to comply with an exclusion direction. The matter was heard in the Magistrates Court of the Australian Capital Territory. The defendants contested the charges, raising issues about the lawfulness of the exclusion direction and the identification of the substance in their possession as cocaine. They also argued that any force used during their arrest was excessive.

The court considered whether the exclusion direction was lawfully issued and whether there was a lawful excuse for non-compliance. It also needed to determine whether the prosecution had proved beyond reasonable doubt that the white powder in the defendants' possession was cocaine. Additionally, the court examined whether the use of force during the arrest was reasonable and lawful.

In its decision, the court found that the exclusion direction was lawfully issued, and there was no lawful excuse for non-compliance. The court was satisfied beyond reasonable doubt that the substance in the defendants' possession was cocaine. The court also found that the force used by the arresting officers was not excessive. The defendants' appeals against conviction and sentence were dismissed.

The court ordered that the convictions and sentences remain as originally imposed by the Magistrates Court. The defendants were found guilty of resisting a territory public official, possessing a drug of dependence, and failing to comply with an exclusion direction. The court confirmed the original penalties imposed on the defendants.

Orders

Orders of the court

See paragraph [58]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.