Jaeger-Steigenberger v O'Neill

[2011] NTSC 42

Jaeger-Steigenberger v O’Neill [2011] NTSC 42

PARTIES:   JAMIE-LEE JAEGER-STEIGENBERGER

v

WAYNE O’NEILL

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:   JA 9 OF 2011 (21034742)

DELIVERED:   15 JUNE 2011

HEARING DATES:   5 MAY 2011

JUDGMENT OF:   MILDREN J

APPEAL FROM:   MR R WALLACE SM

CATCHWORDS:

CRIMINAL LAW – evidentiary provisions – elements of possession – burden of proof – circumstantial case – whether reasonable hypothesis consistent with innocence – appeal allowed

APPEAL AND NEW TRIAL – possession of unlawful drugs – appeal against conviction – circumstantial evidence – elements of offence of possession – whether reasonable hypothesis consistent with innocence – effect of s 40(c) of Misuse of Drugs Act – appeal allowed

WORDS AND PHRASES – “possession”

Criminal Code, s 1, s 31, s 31(2), s 32
Misuse of Drugs Act, s 3(1), s 9, s 9(1), s 9(2)(e), s 20, s 22, s 40, s 40(c), s 40(d), s 40(e)

Barca v The Queen (1975) 133 CLR 82; M v The Queen (1994) 181 CLR 487; applied

Carnesi v Hales (2000) 117 A Crim R 363; followed

Tabe v The Queen (2005) 225 CLR 418; referred to

REPRESENTATION:

Counsel:

Appellant:   I Rowbottom

Respondent:   P Usher

Solicitors:

Appellant:   Withnalls

Respondent:   Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:   18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Jaeger-Steigenberger v O’Neill [2011] NTSC 42

No JA 9 of 2011 (21034742)

BETWEEN:

JAMIE-LEE JAEGER-STEIGENBERGER

Appellant

AND:

WAYNE O’NEILL

Respondent

CORAM:     MILDREN J

REASONS FOR JUDGMENT

(Delivered 15 JUNE 2011)

1. The appellant was charged with unlawfully possessing a traffickable quantity of cannabis, namely 295.27 grams, contrary to s 9(1) and s 9(2)(e) of the Misuse of Drugs Act.  After a contested hearing, the learned Magistrate found the appellant guilty, upon that finding recorded a conviction, and placed the appellant on a bond to be of good behaviour for two years.  The grounds of appeal are as follows:

   1.   The finding of guilt in respect to the charge was unsafe and unsatisfactory;

   2. The learned Magistrate erred in applying s 40 of the Misuse of Drugs Act;

   3.   The learned Magistrate erred in reversing the onus of proof;

   4.   The learned Magistrate erred in failing to consider whether there was a reasonable hypothesis consistent with innocence bearing in mind the case was circumstantial.

2. The evidence before the learned Magistrate consisted of agreed facts as well as oral evidence by police officers.  The facts were that on 17 October 2010 the appellant was driving a Holden Monaro CV8 motor vehicle which was owned by her father, Mr James Steigenberger, along Gardens Road.  The police had established a random breath testing station on Gardens Road approximately 200-300 metres from the Frontier Hotel.  As the vehicle was approaching the random breath testing station, the appellant was directed into the station.  There is no suggestion…