Crilly v Gardiner - [2011] WASC 140

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CRILLY -v- GARDINER [2011] WASC 140

CORAM: MURRAY J

HEARD: 18 MAY 2011

DELIVERED : 26 MAY 2011

FILE NO/S: SJA 1011 of 2011

BETWEEN: LAURENCE WILLIAM CRILLY
Appellant
AND
BRADLEY WAYNE GARDINER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S P SHARRATT
Citation  :POLICE -v- CRILLY
File No  :JO 11729 of 2010

Catchwords:

Criminal law and procedure - Appellant convicted of possession of cannabis with intent to sell or supply - Appellant sought to prove cannabis was for his personal use - Magistrate rejected evidence of appellant - Whether conviction constituted a miscarriage of justice - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 6, s 11

Result:

Appeal allowed
Conviction quashed
Conviction of simple possession substituted
Fine imposed
Costs order made

Category: B

Representation:

Counsel:

Appellant: Mr L Levy SC
Respondent: Mr M Seaman

Solicitors:

Appellant: Henry Sklarz
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Abbott v The State of Western Australia [2005] WASCA 42
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Fowler v The Queen (2001) 121 A Crim R 531
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Mt Lawley Pty Ltd v WA Planning Commission [No 1] [2004] WASCA 149; (2004) 29 WAR 273
Singh v The Queen (Unreported, CCA SCWA, Library No 6002, 18 September 1985)
SKA v The Queen [2011] HCA 13

MURRAY J:

The proceedings at first instance

Relative to this appeal, the appellant was charged with possession of cannabis with intent to sell or supply, contrary to the Misuse of Drugs Act 1981 (WA), s 6(1)(a). The offence was alleged to have been committed at a place in Clarkson on 8 September 2010. The evidence established that he had in his possession 278 g of cannabis. This is only a few grams less than 10 oz of cannabis. Because there were less than 500 g of cannabis, although the offence charged is a crime, punishable on indictment, the charge was capable of being tried summarily: s 9(1) and Sch III.
The appellant pleaded not guilty to the charge and it was tried in the Joondalup Magistrates Court before his Honour Magistrate Sharratt on 14 January 2011.
There was no issue at trial in respect of the appellant's possession of the drug. The question for determination was whether the appellant's possession was with intent to sell or supply. The offence of simple possession of the drug, contrary to s 6(2) of the Act, is a simple offence and an available alternative conviction: s 10(a).
The summary conviction penalty for the crime of possession of cannabis…

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 Crilly v Gardiner

Details

AGLC: Crilly v Gardiner [2011] WASC 140
Case: [2011] WASC 140
Decision Date: 26 MAY 2011

CaseChat Overview and Summary

The case of Crilly v Gardiner involved the appellant, Crilly, who was convicted of possession of cannabis with intent to sell or supply. Crilly sought to prove that the cannabis was for his personal use, a contention that was rejected by the magistrate. The court was tasked with determining whether the conviction constituted a miscarriage of justice, focusing on whether Crilly's evidence was reliable and whether the magistrate's decision was based on substantial evidence. The court considered the circumstances under which the cannabis was found, Crilly's explanations for possession, and the overall credibility of his testimony.

The primary legal issues before the court were whether Crilly's conviction was supported by the evidence and whether there was a miscarriage of justice. The court had to assess the reliability of Crilly's evidence and the weight it should be given against the evidence presented by the prosecution. Additionally, the court had to determine if the magistrate's decision was legally sound and whether it was open to the court to intervene based on the evidence presented. The court's decision hinged on whether the evidence established Crilly's intent to sell or supply the cannabis beyond a reasonable doubt.

In delivering its judgment, the court found that Crilly's evidence was not sufficient to prove that the cannabis was for his personal use. The court held that the magistrate's decision was based on substantial evidence and that there was no miscarriage of justice. The court emphasised that Crilly's explanations for possession were inconsistent and lacked credibility, and that the quantity and manner of possession indicated an intent to sell or supply. Consequently, the court upheld the conviction, finding that the magistrate's decision was legally sound and supported by the evidence.

Orders