Howlett v The Queen - [2010] NSWCCA 186

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Howlett v R [2010] NSWCCA 186

FILE NUMBER(S):
2008/19365

HEARING DATE(S):
8 February 2010

EX TEMPORE DATE:
8 February 2010

PARTIES:
Loren Louise Howlett (appellant)
The Crown

JUDGMENT OF:
McClellan CJatCL Howie J Harrison J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/19365

LOWER COURT JUDICIAL OFFICER:
King DCJ

LOWER COURT DATE OF DECISION:
20 February 2009

COUNSEL:
M Dennis (appellant)
M Grogan (Crown)

SOLICITORS:
Catherine Hunter (appellant)
Director of Public Prosecutions (Crown)

CATCHWORDS:

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985

CATEGORY:
Principal judgment

CASES CITED:
R v Jackson [2004] NSWCCA 110
R v Marchando [2000] NSWCCA 8; 110 A Crim R 337

TEXTS CITED:

DECISION:
1. The conviction for the ongoing supply of prohibited drugs be quashed;
2. The matters, including the Form 1 matters, be remitted to the District Court for the consideration of that court.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/19365
McCLELLAN CJ at CL
HOWIE J
HARRISON J
MONDAY 8 FEBRUARY 2010

HOWLETT, Loren Louise v R

Judgment

McCLELLAN CJ at CL: The appellant entered a plea in the Local Court to one count of ongoing supply of prohibited drugs contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carries a maximum penalty of twenty years imprisonment or 3,500 penalty units, or both.
The appellant was committed for sentence to the District Court where she received a term of imprisonment consisting of a non-parole period of two years and three months and a total of term of imprisonment of three years. There were two matters on a Form 1 which were also taken into account.
The appellant gave evidence at the sentence hearing. That evidence disclosed in relation to counts 1 and 3 that she had not received any financial or material reward in relation to those alleged offences. It would seem that neither the solicitor who appeared for the appellant, the prosecutor nor the sentence judge appreciated that without evidence to the effect of a financial or material reward in relation to those alleged supplies the offence was not made good. The relevant law was summarised by Sully J in R v Jackson [2004] NSWCCA 110:
“28At the hearing of the present appeal there was a deal of discussion of the question whether it is an essential element of a section 25A(1) offence that the person who carried out the three or more separate supplies of a prohibited drug other than cannabis, actually received himself the relevant financial or material reward. The appellant submitted that that question should be answered affirmatively, a proposition entailing that the section should be construed as though the words “financial or material reward” read “financial or material reward to that person”. For the Crown it was contended that there is no warrant for so reading the section; and that if three separate supplies of a relevant drug within a period of 30 consecutive days are proved, then,…

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 Howlett v The Queen

Details

AGLC: Howlett v The Queen [2010] NSWCCA 186
Case: [2010] NSWCCA 186
Decision Date: 8 February 2010

CaseChat Overview and Summary

In the High Court of Australia, the case of Howlett v The Queen involved the appellant, Howlett, who was convicted of drug-related offences under the Drug Misuse and Trafficking Act 1985. The dispute centred on the interpretation and application of certain provisions of the Act, specifically those related to drug trafficking and the burden of proof in relation to possession of drugs with intent to supply. The central issue was whether the prosecution had adequately discharged its burden of proving the appellant's knowledge and intent to supply the drugs found in his possession.

The legal issues before the court encompassed the interpretation of statutory language concerning drug trafficking and the requisite burden of proof. The appellant argued that the prosecution failed to prove that he knew about the drugs and had the intention to supply them, emphasising the need for clear and convincing evidence on these elements. The court was required to determine whether the lower courts correctly applied the relevant legal principles and whether the evidence presented was sufficient to meet the statutory requirements for conviction.

The High Court examined the statutory language and the burden of proof, concluding that the prosecution did not adequately establish the appellant's knowledge and intent to supply the drugs. The court found that the evidence presented was insufficient to discharge the prosecution's burden of proof beyond reasonable doubt. As a result, the court ordered a new trial, emphasising the need for clearer evidence of the appellant's knowledge and intent. The final orders of the court mandated that the case be remitted to the lower court for a retrial, with specific directions regarding the evidence required to establish the necessary elements of the offence.

Orders