Dunn v Woodcock - [2003] NTSC 24

Dunn v Woodcock [2003] NTSC 24
PARTIES:HILARY THERESE DUNN

v
TANYA WOODCOCK

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA92 of 2002 (20209565)
DELIVERED:  20 March 2003
HEARING DATES:  17 February 2003
JUDGMENT OF:  MILDREN J
REPRESENTATION:
Counsel:
Appellant:G Bryant
Respondent:  A. Elliott
Solicitors:
Appellant:North Australian Aboriginal Legal Aid Service
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Mil03289
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Dunn v Woodcock [2003] NTSC 24

No. AP92 of 2002 (20209565)
BETWEEN:

HILARY THERESE DUNN

Appellant

AND:

TANYA WOODCOCK

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 20 March 2003)

This is an appeal against sentence, pursuant to s 163 of the Justices Act.
The appellant pleaded guilty to one count (count 1) of unlawful supply of cannabis to another person contrary to s 5(1) of the Misuse of Drugs Act, and to one count (count 2) of unlawful possession of cannabis plant material contrary to s 9(1) and s (2)(f)(i) of the Act. The maximum penalties which she faced for each of those offences were, respectively, $10,000 or imprisonment for five years, and $5,000 or imprisonment for two years.
In relation to count 1, the learned Magistrate convicted the appellant but released her upon a bond in the sum of $1,000 in her own recognizance to be of good behaviour for a period of 18 months. It was a condition of the bond that for the first 12 months of the bond the appellant allow police access to any premises at which she may be residing for the purpose of checking for drugs, without the need for any search warrant. In relation to count 2, the appellant was convicted and fined $300.
The amended grounds of appeal are as follows:
1.That the condition of the bond is unduly oppressive and contrary to law.
1A.That the learned Magistrate failed to give due weight to the principles of proportionality.
2.That the condition of the bond is unlawful in that it potentially infringes upon the rights of persons other than the defendant who may reside in the same premises.
The facts of this case are that at about 8 p.m. on Friday 21 June 2002 the appellant was at her home at the Nguiu Community, Bathurst Island. Another woman attended the appellant who sold her two foils containing cannabis for $60. On the following morning, the police spoke to the appellant at the Nguiu Store. The police observed a plastic clipseal bag in the appellant's shirt. The bag, when examined, contained two foils of cannabis weighing 1.5 grams and $240 in notes. The appellant was arrested and conveyed to the Nguiu Police Station where she took part in an electronically recorded record of interview. She made full admissions stating: "I sold 8 foils of cannabis for $30 to people. I was keeping the rest to smoke myself.…

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 Dunn v Woodcock

Details

AGLC: Dunn v Woodcock [2003] NTSC 24
Case: [2003] NTSC 24
Decision Date: 20 March 2003

CaseChat Overview and Summary

In Dunn v Woodcock, the appellant, Hilary Therese Dunn, was convicted of unlawful supply of cannabis and unlawful possession of cannabis plant material. Dunn appealed the conditions of her bond, specifically the condition that allowed police to access any premises she resided in for drug checks without a warrant. The court held that the condition was unduly oppressive and contrary to law. The court held that the power to impose conditions is subject to limitations, and conditions that are uncertain, unnecessary, impose unrealistic or needlessly onerous burdens, are otherwise undesirable, impossible of fulfillment, contrary to law, repugnant to the principles or policy of the law, or foreign to the purpose of the power are subject to challenge on appeal. The court held that the condition in this case was unduly oppressive because it placed an unreasonable burden on Dunn, as it placed her in the power of the police who could exercise substantial control over her life by the mere threat of exercising the power to search unreasonably or unfairly. The court rejected the respondent's argument that the condition was not oppressive because it was imposed with the consent of the appellant. The court held that even if the appellant consented to the condition, it did not preclude the appeal court from striking down the condition if it was oppressive. The appeal was allowed, and the condition of the bond requiring the appellant to allow police access to any premises at which she was residing was struck out, but the sentence imposed was otherwise confirmed.

Orders