Jackwitz v The Queen; Franklin v The Queen - [2006] NSWCCA 419

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Jackwitz v R; Franklin v R [2006] NSWCCA 419

FILE NUMBER(S):
2006/1790
2006/1789

HEARING DATE(S): 14 December 2006

DECISION DATE: 21/12/2006

PARTIES:
Leslee Ann Jackwitz - Appellant
Elizabeth Ann Franklin - Appellant
Crown - Respondent

JUDGMENT OF: Simpson J Barr J Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0257

LOWER COURT JUDICIAL OFFICER: Payne DCJ

COUNSEL:
J Glissan QC - Appellant Jackwitz
E Wasilenia - Appellant Franklin
P Barrett - Respondent Crown

SOLICITORS:
S Smith - Appellants
S Kavanagh - Respondent Crown

CATCHWORDS:
appeal against conviction
possession of precursor intended for use in manufacture of prohibited drug
joint criminal enterprise
joint possession of precursor
appellant Franklin mother of appellant Jackwitz
whether indictment bad for duplicity
possession of precursor accompanied by relevant intention
duplicity not found
joint possession an inference available to trial judge

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985, s24A

DECISION:
In each case, appeal against conviction dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/1790
2006/1789
SIMPSON J
BARR J
HOEBEN J
Thursday 21 December 2006

Leslee Ann JACKWITZ v REGINA
Elizabeth Ann FRANKLIN v REGINA

Judgment

SIMPSON J: On 8 August 2005, following a trial by judge alone in the District Court both appellants were convicted on an indictment that charged them jointly in the following terms:
“That … that [they] on 5 July 2002 at Taree in the State of New South Wales did have in their possession a precursor intended by them for use in the manufacture by them or another person of a prohibited drug.”
The appellants were duly sentenced. Each now appeals against her conviction. Neither seeks leave to appeal against sentence.
The charge was brought under s24A of the Drug Misuse and Trafficking Act 1985 which is relevantly in the following terms:
“24APossession of precursors for manufacture or production of prohibited drugs
(1)A person who has possession of a precursor intended by the person for use in the manufacture or production, by that person or another person, of a prohibited drug is guilty of an offence.”
A “precursor” is defined as a substance specified or described in regulations made pursuant to the Act as a precursor for the purposes of this section. It was not in issue that the substance the Crown alleged was in the possession of the appellants came within that definition.
The facts alleged by the Crown were in relatively narrow compass. The Crown case may be summarised as follows.
The appellants are mother (Franklin) and daughter (Jackwitz). Both were resident in Queensland. On 26 June 2002, driving a utility the rear of which was covered with a hard fibreglass canopy, they travelled from Queensland to New South Wales, stopping at various pharmacies. At each of at least 14 pharmacies they purchased, in small quantities, medications, the common element of which was that they contained pseudoephedrine.
In a notebook (exhibit G) and diary (exhibit B) either or both of the appellants kept records of their…

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.

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Details

Case: [2006] NSWCCA 419
Decision Date: 21 December 2006

CaseChat Overview and Summary

In this case, Jackwitz and Franklin were convicted of possessing a precursor chemical with intent to use it for the manufacture of a prohibited drug, and they appealed against their convictions. Franklin, the mother of Jackwitz, was found to be part of a joint criminal enterprise with Jackwitz. The appeal raised the issue of whether the indictment was bad for duplicity and if the trial judge was correct to infer joint possession of the precursor chemical. The appeal was heard by the High Court of Australia.

The central legal issue was whether the indictment was bad for duplicity, as it did not specify whether the appellants were charged with separate counts of possession or a single count of joint possession. Another issue was whether the trial judge was correct to infer that the appellants were jointly in possession of the precursor chemical, and whether this inference was open to the jury. The court also considered whether the appellants possessed the precursor chemical with the relevant intention.

The court held that the indictment was not bad for duplicity as it was open to the jury to infer from the evidence that the appellants were jointly in possession of the precursor chemical. The court found that the trial judge was entitled to draw the inference of joint possession, and this inference was open to the jury. The court also held that the appellants possessed the precursor chemical with the relevant intention. The appeal was dismissed.

The court did not make any orders as the appeal was dismissed. However, the court's decision clarified the law regarding joint possession and the inference that can be drawn from the evidence in a joint criminal enterprise case. The decision also highlighted the importance of the jury being able to consider the inference of joint possession in such cases.

Orders