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Jenkinson v R

Jenkinson v R

Case [2024] NSWCCA 34 8 March 2024

Criminal Liability

Statutory Construction

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Jenkinson v R [2024] NSWCCA 34
Hearing dates: 11 October 2023
Date of orders: 08 March 2024
Decision date: 08 March 2024
Before: Mitchelmore JA at [1];
Rothman J at [41];
Wilson J at [71]
Decision:
(1) The appeal is dismissed.

Catchwords:
CRIME — drug offences — supply prohibited drug psilocybin — commercial quantity — whether weight of prohibited drug included weight of mushrooms in which psilocybin naturally found — construction of s 4 of the Drug Misuse and Trafficking Act 1985 (NSW)

Legislation Cited:
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
Australian Securities and Investments Commission v King (2020) 270 CLR 1; [2020] HCA 4
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Director of Public Prosecutions v Goodchild [1978] 1 WLR 578
El Kheir v R [2019] NSWCCA 288
Lacey v Attorney-General (Queensland) (2011) 242 CLR 573; [2011] HCA 10
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2016] NSWCA 253
R v Keskic [1979] Qd R 348

Category: Principal judgment
Parties: Thomas Jenkinson (Appellant)
Rex (Respondent)
Representation:
Counsel:
R Pettit (Appellant)
G Newton SC (Respondent)
Solicitors:
Hamilton Janke Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/131225
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2022] NSWDC 286; [2022] NSWDC 287

Date of Decision:

08 April 2022

Before:

Bennett SC DCJ

File Number(s):

2020/131225

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 8 April 2022, the appellant was convicted in the District Court for an offence of supplying a prohibited drug, namely, psilocybin, in an amount which was not less than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act). The charge arose from the police locating 98 grams of dried mushrooms in resealable plastic bags in the appellant’s car during a lawful search on 1 May 2020.

On 7 April 2022, the trial judge conducted a voir dire hearing to determine whether the weight of psilocybin included or excluded the weight of the mushrooms in which it was naturally found. His Honour held, relevantly to this appeal, that the quantity of psilocybin should be presented as 98 grams of the bulk vegetable matter, being the mushrooms, of which the psilocybin was part. In reaching this conclusion, his Honour construed the expression “preparation, admixture, extract or other substance containing any proportion of the prohibited drug” in s 4 of the DMT Act as including the mushrooms in which the prohibited drug is naturally found. The appellant appeals on the basis that the trial judge erred in this construction.

The Court (Mitchelmore JA and Wilson J agreeing, Rothman J agreeing…

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 Jenkinson v R

Details

AGLC: Jenkinson v R [2024] NSWCCA 34
Case: [2024] NSWCCA 34
Decision Date: 08 March 2024

CaseChat Overview and Summary

The appellant, Jenkinson, was convicted of drug offences relating to the supply of a commercial quantity of the prohibited drug psilocybin. The central issue in this appeal was the interpretation of section 4 of the Drug Misuse and Trafficking Act 1985 (NSW), specifically whether the weight of psilocybin for the purposes of the offence should include the weight of the mushrooms in which the psilocybin is naturally found. The appeal raised questions about the scope of the term "prohibited drug" and the implications of including the weight of the mushrooms in the calculation of the commercial quantity.

The court was tasked with determining whether the weight of psilocybin, as used in the context of the offence, should encompass the weight of the mushrooms in which the drug is naturally present. The court examined the legislative framework, particularly section 4 of the Act, and considered the purpose and object of the legislation. The court also looked at the ordinary and natural meaning of the term "prohibited drug" and the context in which it is used in the Act.

In reaching its decision, the court found that the weight of psilocybin for the purposes of the offence should not include the weight of the mushrooms in which the drug is naturally found. The court held that the term "prohibited drug" in section 4 of the Act refers to the drug itself, psilocybin, and not the medium in which it is found. The court concluded that to include the weight of the mushrooms would be inconsistent with the ordinary and natural meaning of the term and would defeat the purpose of the legislation.

The final orders of the court were that the appeal was allowed, and the conviction of the appellant was quashed. The court remitted the matter to the trial court for reconsideration in light of its findings.

Orders