Gokel v Gualandi - [2001] NTCA 6

Gokel v Gualandi [2001] NTCA 6
PARTIES:NOEL JOHN GOKEL

v
GREGORY SEBASTIAN GUALANDI

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:AP2 of 2001
DELIVERED:  24 August 2001
HEARING DATES:  2 August 2001
JUDGMENT OF:  MARTIN CJ, MILDREN & RILEY JJ
REPRESENTATION:
Counsel:
Appellant:W. J. Karczewski
Respondent:  M. Carter
Solicitors:
Appellant:Office of Director of Public Prosecutions
Respondent:  Withnall Maley & Co.
Judgment category classification:    A
Judgment ID Number:  ril0117
Number of pages:  11

ril0117
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Gokel v Gualandi [2001] NTCA 6
No. AP2 of 2001

BETWEEN:
NOEL JOHN GOKEL

Appellant
AND:
GREGORY SEBASTIAN GUALANDI

Respondent

CORAM: MARTIN CJ, MILDREN & RILEY JJ
REASONS FOR JUDGMENT
(Delivered 24 August 2001)
MARTIN CJ:

I agree with the judgment of Riley J and have nothing further to add.
MILDREN J:
I agree with the judgment of Riley J and have nothing further to add.
RILEY J:

On 24 July 2000 the respondent entered a plea of guilty to having unlawfully possessed a dangerous drug specified in Schedule 1 of the Misuse of Drugs Act namely cocaine. He also admitted the circumstance of aggravation that he was in possession of the dangerous drug on licensed premises. The offences were contrary to s 9(1) and s 9(2)(c)(ii) of the Misuse of Drugs Act.

The circumstances of the offending were that on Saturday 31 July 1999 the respondent was at the MGM Grand Casino. At about 10.20pm he entered the first floor toilets holding a small clipseal bag containing a white powdery substance. He was in the company of two co-offenders. Whilst they were in the toilets security personnel from the Casino entered the toilets and apprehended the respondent. The white powder substance was collected and held as an exhibit and was subsequently analysed and identified as being cocaine. Cocaine is a dangerous drug referred to in Schedule 1 of the Misuse of Drugs Act.
When the matter came before the Court of Summary Jurisdiction on 24 July 2000 and after the plea had been entered the Court was informed that whilst the respondent believed he had in his possession a dangerous drug he believed that the drug was amphetamine a drug referred to in Schedule 2 of the Misuse of Drugs Act. The respondent was called to give evidence to that effect. It seems that evidence was given in order to discharge the reverse onus provided for in s 40(d) of the Act. The evidence was accepted by the learned Chief Magistrate.
In response to a question from the Court as to whether or not the plea of guilty to an offence against s 9(1) and s 9(2)(c)(ii) of the Misuse of Drugs Act ought to have been accepted in those circumstances, counsel for the respondent submitted that the offence was constituted by the unlawful possession of a dangerous drug and the identity of that drug was “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 Gokel v Gualandi

Details

AGLC: Gokel v Gualandi [2001] NTCA 6
Case: [2001] NTCA 6
Decision Date: 24 August 2001

CaseChat Overview and Summary

In the matter of Gokel v Gualandi, the respondent, Gregory Sebastian Gualandi, was found to be in unlawful possession of cocaine, a dangerous drug listed in Schedule 1 of the Misuse of Drugs Act. Gualandi had entered a plea of guilty to possessing a dangerous drug, as well as the circumstance of aggravation that he was in possession of the drug on licensed premises. The court was required to determine whether the respondent's mistaken belief about the identity of the drug he possessed was relevant to his conviction.

The court held that the identity of the drug was not an essential element of the offence of unlawful possession of a dangerous drug, as provided for in Section 9(1) of the Misuse of Drugs Act. The court found that the prosecution only needed to show that the accused person had knowledge of having a thing or substance which was, in fact, a dangerous drug. The respondent's mistaken belief about the identity of the drug did not affect his conviction for unlawfully possessing a dangerous drug.

The appeal was allowed, and the conviction was quashed. The court ordered that the order of Thomas J quashing the conviction be set aside, the order of the Chief Magistrate convicting the respondent of the offence be restored, and the matter be remitted to Thomas J to determine the appeal upon the grounds set out in the notice of appeal filed in the Supreme Court in accordance with the judgment of this Court.

Orders