Mickelberg v The Queen - [2000] WASCA 219

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: MICKELBERG -v- THE QUEEN [2000] WASCA 219

CORAM: KENNEDY ACJ
IPP J
ANDERSON J

HEARD: 24 JULY 2000

DELIVERED : 18 AUGUST 2000

FILE NO/S: CCA 87 of 2000

BETWEEN: RAYMOND JOHN MICKELBERG
Applicant
AND
THE QUEEN
Respondent

FILE NO/S :CCA 94 of 2000

BETWEEN :RAYMOND MICKELBERG
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Possessing cannabis with intent to sell or supply - Whether issue of appellant's intention to supply to another should have been left to the jury - Whether intention to return cannabis to person leaving it with appellant for safe-keeping

Legislation:

Misuse of Drugs Act 1981(WA), s 6(1), s 11(a), s 34(2)(a)

Result:

Appeal allowed

Representation:

CCA 87 of 2000

Counsel:

Applicant: Mr S D Hall
Respondent: Mr R E Cock QC

Solicitors:

Applicant: Laurie Levy Barristers & Solicitors
Respondent: State Director of Public Prosecutions

CCA 94 of 2000

Counsel:

Appellant: Mr S D Hall
Respondent: Mr R E Cock QC

Solicitors:

Appellant: Laurie Levy Barristers & Solicitors
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Driscoll v The Queen (1977) 137 CLR 517
Manisco (1995) 79 A Crim R 213
Manisco v R (1995) 14 WAR 303
R v Carey (1990) 20 NSWLR 292
Urbano (1983) 9 A Crim R 170

Case(s) also cited:

Atholwood v The Queen [1999] WASCA 256
Lowndes v The Queen (1999) 195 CLR 665
Mans v The Queen, unreported; CCA SCt of WA; Library No 9085; 1 October 1991
R v Carey (1990) 50 A Crim R 163
R v Liberti (1991) 55 A Crim R 120
R v Pelham (1995) 82 A Crim R 455
R v Stol (1989) 44 A Crim R 137
R v Tuckey (1991) 57 A Crim R 468
R v Urbano (1983) 9 A Crim R 170

KENNEDY ACJ: I have had the advantage of reading in draft the reasons to be published by Ipp J. I am in agreement with those reasons and with the orders which his Honour proposes.
IPP J: The appellant was convicted after trial of two counts of possessing cannabis with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981. He was sentenced to 2 years' imprisonment on each count, the second sentence of 2 years being ordered to be served concurrently with the first. The appellant was ordered to be eligible for parole. He appeals against his convictions and applies for leave to appeal against the sentences.
From the time of his arrest, the appellant admitted possessing the cannabis, but denied any intent to sell or supply. The quantity of cannabis in the appellant's possession was greater than that specified in Sch V of the Misuse of Drugs Act, and accordingly, by s 11(a) of the Act, the appellant was deemed to have the intent to sell or supply unless the contrary…

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 Mickelberg v The Queen

Details

AGLC: Mickelberg v The Queen [2000] WASCA 219
Case: [2000] WASCA 219
Decision Date: 18 AUGUST 2000

CaseChat Overview and Summary

In Mickelberg v The Queen, the appellant, Mickelberg, was convicted of possessing cannabis with intent to sell or supply. The High Court was asked to review the trial judge's decision in handling the issue of whether the jury should have been left to determine whether the appellant intended to supply the cannabis to another person. The central issue was whether the appellant's intention to return the cannabis to the person who had left it with him for safe-keeping was a question that should have been left to the jury's determination. The High Court needed to assess whether the trial judge was correct in removing this question from the jury's consideration.

The High Court considered whether the trial judge was correct in concluding that the appellant's intention to return the cannabis to the person who had left it with him for safe-keeping was a question of fact that should not be left to the jury. The court examined the principles governing the withdrawal of questions of fact from a jury, the role of the jury in determining intent, and the application of these principles in the context of drug possession and supply charges. The court also needed to consider whether the trial judge had correctly applied the relevant legal principles and whether the error, if any, was a significant one that affected the fairness of the trial.

The High Court determined that the trial judge was correct in concluding that the appellant's intention to return the cannabis to the person who had left it with him for safe-keeping was not a question of fact that should be left to the jury. The court held that the trial judge properly exercised his discretion in removing this question from the jury's consideration. The court found that the error, if any, was not significant enough to affect the fairness of the trial. The appeal was dismissed, and the conviction was upheld.

No additional orders were made by the court beyond the dismissal of the appeal and the upholding of the conviction.

Orders