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
2006/1789SIMPSON J
BARR J
HOEBEN JThursday 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…
Keep reading for free
Create a free CaseChat account to read Jackwitz v The Queen; Franklin v The Queen and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2006] NSWCCA 419
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: SIMPSON J
Full text does not contain this section.