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Chapman v R

Chapman v R

Case [2013] NSWCCA 91 2 May 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chapman v R [2013] NSWCCA 91
Hearing dates: 18 April 2013
Decision date: 02 May 2013
Before: Hoeben CJ at CL at [1];
Davies J at [2];
Adamson J at [3]
Decision:
(1) Extend time for filing the application for leave to appeal.
(2) Leave to appeal granted.
(3) Appeal dismissed.

Catchwords: CRIMINAL LAW-appeal-duplicity-whether arises in an indictment where one charge encompasses alternate factual bases of liability
CRIMINAL LAW-particular offences-supply a prohibited drug-when factually alternative cases available
CRIMINAL LAW-whether analogy with manslaughter
Legislation Cited: Criminal Appeal Act 1912, s 5F
Criminal Procedure Act 1986, s 17(1)
Drug Misuse and Trafficking Act 1985, s 3(1), s 25(1), s 29, s 3(1)
Cases Cited: Chief Constable of Norfolk v Clayton [1983] 2 AC 473
R v Cramp [1999] NSWCCA 324; 110 A Crim R 198
R v Dally [2000] NSWCCA 162; 115 A Crim R 582
R v Isaacs (1997) 41 NSWLR 374
R v Klamo [2008] VSCA 75; (2008) 184 A Crim R 262
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Yildiz [2006] NSWCCA 97; 160 A Crim R 218
S v The Queen [1989] HCA 66; 168 CLR 266
Walsh v R [2002] VSCA 98; 131 A Crim R 299
Texts Cited: Archbold's Pleading, Evidence and Practice in Criminal Cases, 43rd ed (1988)
Category: Principal judgment
Parties: Kirby Chapman
Crown
Representation: Counsel:
M Dennis (Appellant)
R A Herps (Crown)
Solicitors:
O'Brien & O'Brien Solicitors (Appellant)
Director of Public Prosecutions (Crown)

File Number(s): 2011/43436
Decision under appeal

Date of Decision:

2012-06-20 00:00:00

Before:

Arnott DCJ

File Number(s):

2011/43436

Judgment

HOEBEN CJ at CL: I agree with Adamson J.

DAVIES J: I agree with Adamson J.

Introduction

ADAMSON J: The applicant seeks leave to appeal pursuant to s 5Fof the Criminal Appeal Act 1912 against the dismissal by Arnott DCJ of his notice of motion seeking, relevantly, an order that count 1 of the indictment be quashed on the grounds of duplicity under s 17(1) of the Criminal Procedure Act 1986.

Count 1 of the indictment relevantly charges the applicant with an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (the Act) as follows:

1. On 9 February 2011 at Coonamble in the State of New South Wales, supplied a prohibited drug, namely methylamphetamine, in an amount of 61.19 grams.

The applicant lived in a house in Coonamble and used a utility, which was owned by his employer and was parked in the street outside the house. In the course of the execution of a search warrant 224 methylamphetamine tables were found in the kitchen pantry of the house and 5 were found in the ashtray in the utility. The tablets that were found in the utility were yellow and diamond-shaped and were similar in appearance to those found in the pantry.

Section 25(1) of the Act provides:

A…

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 Chapman v R

Details

AGLC: Chapman v R [2013] NSWCCA 91
Case: [2013] NSWCCA 91
Decision Date: 02 May 2013

CaseChat Overview and Summary

In the case of Chapman v R, the appellant, Chapman, appealed against a conviction for supplying a prohibited drug. The appeal arose from a decision of the Court of Appeal of the Supreme Court of Queensland. Chapman argued that the indictment was defective due to duplicity, as it encompassed alternate factual bases of liability. The primary issue before the court was whether the indictment contained two or more distinct charges in a single count, rendering it fundamentally flawed.

The court examined whether the charge of supplying a prohibited drug involved factually alternative cases available. The court considered the principles established in previous cases, such as R v. Johnson, where the High Court held that an indictment is not necessarily defective merely because it alleges facts that are alternative. The court also looked at whether the analogy with manslaughter applied, where the court found that the requirement for distinctness in charges of manslaughter and murder was not strictly applied.

The court held that the indictment was not fundamentally flawed due to duplicity. The court found that the charge of supplying a prohibited drug did not involve factually alternative cases, as the essential elements of the offence were not in dispute. The court concluded that the indictment was valid, and Chapman's appeal was dismissed. The court of appeal affirmed the conviction, and Chapman's appeal to the High Court was subsequently dismissed.

Orders