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

1. 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.”

2. The appellants were duly sentenced.  Each now appeals against her conviction.  Neither seeks leave to appeal against sentence.

3. 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.

4. The facts alleged by the Crown were in relatively narrow compass.  The Crown case may be summarised as follows.

5. 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.

6. In a notebook (exhibit G) and diary (exhibit B) either or both of the appellants kept records of their purchases, together with a note of the profit they anticipated making on disposing of the medications.  On 5 July 2002 Jackwitz drove the vehicle to a Taree pharmacy.  Franklin purchased a packet of sinus and nasal medication.  The pharmacist alerted police to the activities of the appellants.  Police stopped the vehicle and searched it.  In the rear of the utility they found a garbage bag which contained a large number of bubble-packed sheets of packets of medications of three different kinds.  In the front of the vehicle they found more of the medications in the glove box.  Also in the vehicle was located the notebook and diary mentioned above.

7. In all, the tablets in the possession of the appellants contained 347.1 grams of pseudoephedrine-hydrochloride.

8. Also found in the vehicle were receipts for the medications in the name of Jackwitz.  Others were located in the handbags of the two appellants.

   the trial

9. By notice of motion dated 6 December 2004 each applicant sought an order that the indictment be quashed upon the ground that it was bad for duplicity.  Having heard argument on the question, Payne DCJ dismissed the notice of motion, holding that the indictment did not suffer from the defect of duplicity.

10. Evidence was given in the trial by two Taree pharmacists, each of whom asserted that Franklin had entered the pharmacy and purchased medications containing pseudoephedrine.  Both, obviously suspicious, reported the purchases to police.  It was as a consequence of these notifications that the appellants’ vehicle was stopped and searched.

11. Evidence was also given by various police officers involved, and expert evidence was given by Detective Inspector Willingham; and a statement of a police forensic scientist, Mr William Allender, was tendered.

12. There are two essential elements to the charge under s24A:

    (i)possession of a precursor;

    (ii)intention that the precursor be used, either by the accused person, or by another person, in the manufacture of a prohibited drug.

13. In relation to Jackwitz, in the circumstances there could have been, and was, no issue as to the first element, of possession, which was conclusively established by the direct evidence.  That was not so in relation to Franklin, whose position was that the substance was in the exclusive possession of Jackwitz.  The Crown sought to prove the intention of the appellants by circumstantial evidence.  The circumstances included the repeated purchases, at different pharmacies in a wide variety of locations, of the medications; the recording in the notebook and diary of the purchases; the recording of the anticipated profit; and the quantity of the substance found in their possession.

14. Neither appellant gave evidence.  Jackwitz argued, in effect, that the Crown had failed to establish, beyond reasonable doubt, that her possession (which was not disputed) of the substance was for the relevant purpose.  Franklin argued that the Crown had failed to prove that she had possession of the substance.

15. The trial judge, Payne DCJ, declared herself satisfied beyond reasonable doubt that the two appellants were part of a joint (criminal) enterprise and were in joint possession of all of the medication found in the vehicle.  She held that the only inference available on the evidence was that each appellant intended the precursor to be used in the manufacture of methylamphetamine, either by herself, or by another person.

16. Accordingly, she convicted each of the appellants.

    grounds of appeal

17. Initially, each appellant pleaded six grounds of appeal.  These were in identical terms, as follows:

    “1.The conviction of the appellant be quashed upon the ground that the charge upon which she was convicted was bad for duplicity.

    2.The trial judge erred in law in holding that the evidence at the conclusion of the prosecution case disclosed a prima facie case or a case requiring the appellant to be called upon to answer.

    3.The trial judge erred in law in refusing to direct a verdict of acquittal at the conclusion of the prosecution case.

    4.The trial judge erred in law in holding that the evidence was capable of satisfying her, as tribunal of fact, of the guilt of the appellant beyond reasonable doubt.

    5.That the trial judge erred in law in holding that the evidence established the intent of the appellant as charged, viz; possession with intent for use in the manufacture of a prohibited drug.

    6.That the trial judge erred in the exercise of her discretion and the application of s138 Evidence Act [1995] by admitting over objection the evidence of the stopping, detention and search of the motor vehicle.”

18. On the appeal, each appellant abandoned reliance upon ground 6.  Franklin sought and was granted leave to amend the notice of appeal by adding a further ground, in the following terms:

    “7.Error of law in finding that the appellant was in joint possession of a prohibited drug.”

    ground 1

19. Both at first instance and on appeal the argument put in relation to duplicity focused upon that part of the indictment which asserted possession of the precursor, intended by the appellants:

    “… for use in the manufacture by them or another person” 
    (italics added)

    of a prohibited drug.

20. The argument advanced was that, in framing s24A as it did, the legislature intended to create at least four different offences:

    (a)possession of the precursor for the purpose of the manufacture of a prohibited drug by the person in possession;

    (b)possession of a precursor for the purpose of production of a prohibited drug by the person in possession;

    (c)possession of a precursor for the purpose of manufacture of a prohibited drug by a person other than the person in possession;

    (d)possession of a precursor for the purpose of production of a prohibited drug by a person other than the person in possession.

21. Duplicity in an indictment occurs where the charge, as stated, properly construed, charges the accused with having committed two or more separate offences:  see Archbold:  Criminal Pleading, Evidence and Practice, 44th Edition (1995), Vol 1, p75, cited in Walsh v Tattersall [1996] HCA 26; 188 CLR 77 at 84. The essence of the appellants’ argument is that, by incorporating in a single charge an allegation that the appellants had possession of the precursor for manufacture of a prohibited drug either by themselves, or by another person, two separate offences were incorporated – that is, the offence of possession for the purpose of manufacture by themselves; and possession of the precursor for the purpose of manufacture of a prohibited drug by some other person.

22. In support of the argument counsel relied upon what was described as an “enlightening” decision of the English Court of Appeal in Mallon v Allen [1964] 1 QB 385, it being submitted (in written submissions) that the effect of that case was that:

    “… where an indictment alleging a person had been ‘permitted or allowed’ to remain on premises was held to be bad, on the basis that two offences were alleged.”

23. The submission significantly misstates what was held in that case.  The statute there under consideration provided:

    “No person who is apparently under the age of 18 years … shall be admitted to or allowed to remain on those premises …”

24. It can readily be seen that that statutory provision clearly created offences of two different characters, constituted by two different acts:  admitting a person under the age of 18 years to licensed premises; and allowing a person under the age of 18 years to remain upon licensed premises.  The conduct in each case is quite different.  In the one case it is admitting a person of the prohibited age into licensed premises; in the other it is allowing a person of relevant age already in the licensed premises to remain there.  It is the conduct which is the gist of the offence.

25. Reliance was also placed upon the decision of the High Court in Walsh v Tattersall.  In that case, a single charge was brought under a statute which made an offence of obtaining by dishonest means any payment or other benefit under the statute.  The defendant, Walsh, was charged with obtaining a series of payments or benefits by dishonest means.  The payments or benefits were particularised.

26. It was there argued that the count was bad for duplicity as alleging a number of separate offences.  Dawson and Toohey JJ rejected the argument.  Their Honours noted that the prosecution case was not of a series of separate dishonest pretences, but that, as a result of, effectively, a single dishonest pretence, Walsh received multiple payments or benefits.  The gist of the offence was the act of dishonesty in making a false pretence.

27. Gaudron and Gummow JJ decided the case on what they described as “an anterior question”, and did not deal with the duplicity issue.  Kirby J was of the opinion that the count was bad for duplicity.

28. The decision is of only the most marginal relevance.  There is nothing in Walsh v Tattersall that throws any light on the present issue.

29. In my opinion the argument advanced on behalf of the appellants must fail.  The essential element of the offence charged is possession of the precursor, accompanied by the relevant intention.  It is not essential to the proof of that charge that the person in possession have a specific intent as to the identity of the individual or individuals who will manufacture or produce the prohibited drug; that is merely incidental.  It may well be that an offender has possession of a precursor with intent that it be made into a prohibited drug without a final intention as to by whom the prohibited drug is to be made.

30. I would reject the first ground of appeal.

    grounds 2, 3, 4 and 5

31. Grounds 2 and 3 are essentially the same ground – that the trial judge was in error in holding that the Crown had established a prima facie case.  Ground 4 and 5 are an extension of those grounds, that the evidence was insufficient to establish the guilt of the appellants beyond reasonable doubt.

32. The argument put on behalf of Jackwitz was that the Crown had failed to exclude the possibility that the appellants had purchased the medication for resale for profit, purely as medication.  Senior counsel sought to draw comfort from the evidence of the notebook, concerning the anticipated profits.

33. The trial judge drew an inference, from evidence to which I have already referred, that the intention of both appellants was the manufacture of a prohibited drug.  In my opinion that inference was amply available to her.  Indeed, the alternative inference, proposed on behalf of Jackwitz, is entirely without any foundation in the evidence, and well beyond the bounds of rationality.  I am satisfied that her Honour made no error in finding that the Crown had established a prima facie case, in refusing to direct a verdict of acquittal at the conclusion of the prosecution, nor in proceeding to be satisfied beyond reasonable doubt of the intention of the appellants.

    ground 7:  joint possession

34. This ground was advanced only on behalf of Franklin.  Reliance was placed on her behalf on R v Amanatidis [2001] NSWCCA 400; R v GNN [2000] SASC 447; and R v Filippetti (1984) 13 A Crim R 335. It may be accepted that, emerging from these authorities, knowledge of the presence of a prohibited substance is not sufficient to establish possession; the Crown must establish that the prohibited substance is not in the exclusive possession of another person; and must establish physical control and an intention to exercise control over it. These are unremarkable propositions.

35. They do not address the issue raised on the evidence.  I do not propose to restate that evidence in great detail.  Both appellants were present in the vehicle over a number of days.  The evidence was that Franklin, on at least two occasions, entered the pharmacies and purchased the substances.  It was open to the trial judge to draw an inference, as she did, that the two appellants were party to a joint criminal enterprise.  From there it is an obvious inference that they were in joint possession of the substance.

36. I would reject this ground of appeal.

37. Accordingly, I propose that, in each case, the appeal against conviction be dismissed.

38. BARR J:  I agree with Simpson J.

39. HOEBEN J:  I agree with Simpson J.

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LAST UPDATED:               27/12/2006