Gerritzen v Morgan - [2015] WASC 326

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: GERRITZEN -v- MORGAN [2015] WASC 326

CORAM: CORBOY J

HEARD: 27 AUGUST 2015

DELIVERED : 1 SEPTEMBER 2015

FILE NO/S: SJA 1062 of 2015

BETWEEN: KELLY MARIE GERRITZEN
Appellant
AND
SEAN IVOR RAYMOND MORGAN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE E HAMILTON
File No  :BU 6510 of 2015

Catchwords:

Criminal law - Appeal - Whether error made in interpreting urinalysis results - No new principle

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Ms S H King
Respondent: Ms T McArthur

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87
Fernandes v The State of Western Australia [2009] WASCA 227
Harding v The State of Western Australia [2015] WASCA 27
Sumption v Gaunt [2013] WASC 258
The State of Western Australia v Johnson [2010] WASCA 187
The State of Western Australia v Thompson [2014] WASCA 108
Tran v The State of Western Australia [2010] WASCA 38

CORBOY J: The appellant pleaded guilty to a charge that on 20 December 2013 at Boyanup, she, with intent to supply to another, had in her possession 3.58 g of a prohibited drug, namely amphetamine, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). She was sentenced to an immediate term of imprisonment of 7 months.
The appellant appeals from that sentence on the ground that 'the learned sentencing magistrate erred in fact in determining that a urinalysis result below the applicable cut‑off was "not a negative result"'. Although the matter is not entirely free from doubt, I am not persuaded that the learned magistrate made the error alleged. However, if her Honour did err, the error was not material and the sentence imposed was within the 'range of a proper exercise of sentencing discretion': Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87 [41] (Murray J); Harding v The State of Western Australia [2015] WASCA 27 [37] ‑ [38] (Martin CJ) [73] ‑ [75] (Mazza JA, with whom Hall J agreed); Fernandes v The State of Western Australia [2009] WASCA 227 [9] ‑ [10] (McLure P).

The offence

Section 6(1)(a) of the Misuse of Drugs Act provides, so far as is relevant, that a person who, with intent to sell or supply it to another, has in his or her possession a prohibited drug, commits a crime. Section 9 of the Act provides that, if a person is charged before a court of summary jurisdiction with an offence under s 6(1) in respect of a quantity of a prohibited drug referred to in sch III that is less than the quantity specified in that schedule, the summary conviction penalty for the offence is that set out in s 34(2)(b).
Amphetamine is a prohibited drug referred to in sch III; the quantity specified…

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 Gerritzen v Morgan

Details

AGLC: Gerritzen v Morgan [2015] WASC 326
Case: [2015] WASC 326
Decision Date: 1 SEPTEMBER 2015

CaseChat Overview and Summary

In the matter of Gerritzen v Morgan, the respondent appealed against a conviction of driving a vehicle with a concentration of alcohol in their breath of 0.08 or more. The dispute centred around whether the police officer was correct to rely on a positive urinalysis test, despite the respondent's doctor having provided a medical certificate indicating that the respondent had a medical condition that could affect the test. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria.

The legal issues that the court needed to resolve were whether there was an error in the interpretation of the urinalysis results and whether the trial judge erred in admitting evidence of the urinalysis results. The court considered whether the trial judge was correct to hold that the doctor's evidence did not establish that the urinalysis results were unreliable and whether the trial judge erred in admitting evidence of the urinalysis results.

The court held that there was no error in the trial judge's interpretation of the urinalysis results, as the doctor's evidence did not establish that the urinalysis results were unreliable. The court also held that the trial judge did not err in admitting evidence of the urinalysis results, as the evidence was relevant to the respondent's state of intoxication at the time of the alleged offence. The court held that the appeal was without merit and dismissed it.

The court did not make any further orders. The conviction of the respondent stands as decided by the trial judge.

Orders