NSW Police v Gittany - [2022] NSWLC 7

Local Court

New South Wales

Medium Neutral Citation: NSW Police v Gittany [2022] NSWLC 7
Hearing dates: 1 November 2022
Date of orders: 9 November 2022
Decision date: 09 November 2022
Jurisdiction: Criminal
Before: Nash LCM
Decision:
Sequence 1 proved – verdict: guilty
Sequence 2 dismissed – verdict: not guilty

Catchwords:
Crime – allegations concerning inmate at Clarence Correction Facility – sequence 1: possession of prohibited drug – buprenorphine strips – direct evidence from correctional officer and close circuit television and body worn video footage - circumstantial evidence arising from DNA testing - whether accused had possession of buprenorphine strips – sequence 2: possession of offensive weapon – prison-made ‘shiv’ – whether accused had possession of shiv - circumstantial evidence arising from DNA testing

Legislation Cited:
Crimes Act 1900
Crimes (Administration of Sentences) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
He Kaw Teh v The Queen (1985) 157 CLR 523
Leonard v Morris (1975) 10 SASR 528
Mahmood v Western Australia (2008) 232 CLR 397
R v Baird (1985) 3 NSWLR 331
R v Borg, Carroll & Fear [2015] NSWDC 116
R v Cotterill (unrep, 7/6/93, NSWCCA)
R v Galvin (No. 2) [1961] VR 740
R v Micallef [2002] NSWCCA 480

Texts Cited:
Nil

Category: Principal judgment
Parties: NSW Police (Prosecutor)
Benjamin Gittany (Defendant)
Representation:
Counsel:
N/A
Solicitors:
Sgt Batterson (Prosecutor)
Elie Srour, Criminal Law Group (Defendant)

File Number(s): 2021/257601
Publication restriction: Nil

Judgment

Benjamin Gittany (the accused) is charged with 2 offences:

Sequence 1: on 7 July 2021, at the Clarence Correctional Facility, the accused possessed a prohibit drug, to wit, buprenorphine, contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985; and

Sequence 2: on 7 July 2021, at the Clarence Correctional Facility, the accused possessed an offensive weapon or instrument, being a prison-made weapon or ‘shiv’, in a place of detention, contrary to s 253E(1) of the Crimes (Administration of Sentences) At 1999.

Section 10(1) of the Drug Misuse and Trafficking Act 1985 provides:

10 Possession of prohibited drugs
(1) A person who has a prohibited drug in his or her possession is guilty of an offence.
…

Section 253E of the Crimes (Administration of Sentences) Act 1999 provides:

253E   Unlawful possession of offensive weapons or instruments
(1)   A person must not, without reasonable excuse, have in his or her possession an offensive weapon or instrument in a place of detention.
Maximum penalty—50 penalty units or imprisonment for 2 years, or both.
(2)   If a person is convicted of an offence under this section, the court may, in addition to any penalty it may impose, make an order that the offensive weapon or instrument be forfeited to the Crown, and the weapon or instrument is forfeited accordingly.
(3)   In this section, offensive weapon or instrument has the same meaning as it has in the Crimes Act 1900.

Section 4 of the Crimes Act 1900 relevantly provides:

…
Offensive weapon or instrument means—
(a) a dangerous weapon, or
(b) any…

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.

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Details

Case: [2022] NSWLC 7
Decision Date: 09 November 2022

CaseChat Overview and Summary

The case of NSW Police v Gittany involved the appellant, who was an inmate at the Clarence Correction Facility, facing allegations of possessing a prohibited drug, buprenorphine strips, and a prison-made offensive weapon, known as a'shiv'. The matter was heard and determined in the Supreme Court of New South Wales. The prosecution presented direct evidence from a correctional officer, who witnessed the appellant in possession of the buprenorphine strips, and CCTV and body-worn video footage corroborating this evidence. Additionally, circumstantial evidence was provided through DNA testing, which further supported the claim of possession. Regarding the possession of the shiv, the prosecution relied solely on circumstantial evidence derived from DNA testing.

The court was tasked with determining whether the appellant had indeed possessed the buprenorphine strips and the shiv. In addressing the first sequence of events, the court found the direct evidence and CCTV footage to be compelling. The DNA evidence, while circumstantial, was deemed sufficient to support the conclusion that the appellant had possession of the prohibited drug. However, in relation to the second sequence concerning the shiv, the court found the circumstantial evidence insufficient to prove the appellant's possession beyond a reasonable doubt. The court emphasised the necessity of direct evidence or strong corroborative evidence to substantiate such allegations.

The court concluded that the prosecution had successfully proved the appellant's possession of the buprenorphine strips, resulting in a guilty verdict. Conversely, the court dismissed the allegation concerning the possession of the shiv due to the lack of sufficient evidence, leading to a not guilty verdict. The court meticulously examined the evidence and the applicable legal standards to reach its determination.

The final orders of the court were that the first sequence concerning the possession of the buprenorphine strips was proven, with the verdict of guilty recorded. The second sequence, concerning the possession of the shiv, was dismissed, and the verdict was not guilty. This decision underscores the importance of robust evidence in criminal cases, particularly where the prosecution relies on circumstantial evidence.

Orders

Orders of the court

Sequence 1 proved – verdict: guilty

Sequence 2 dismissed – verdict: not guilty

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

Full text does not contain this section.

Medium Neutral Citation:	NSW Police v Gittany [2022] NSWLC 7
Hearing dates:	1 November 2022
Date of orders:	9 November 2022
Decision date:	09 November 2022
Jurisdiction:	Criminal
Before:	Nash LCM
Decision:	Sequence 1 proved – verdict: guilty Sequence 2 dismissed – verdict: not guilty
Catchwords:	Crime – allegations concerning inmate at Clarence Correction Facility – sequence 1: possession of prohibited drug – buprenorphine strips – direct evidence from correctional officer and close circuit television and body worn video footage - circumstantial evidence arising from DNA testing - whether accused had possession of buprenorphine strips – sequence 2: possession of offensive weapon – prison-made ‘shiv’ – whether accused had possession of shiv - circumstantial evidence arising from DNA testing
Legislation Cited:	Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	He Kaw Teh v The Queen (1985) 157 CLR 523 Leonard v Morris (1975) 10 SASR 528 Mahmood v Western Australia (2008) 232 CLR 397 R v Baird (1985) 3 NSWLR 331 R v Borg, Carroll & Fear [2015] NSWDC 116 R v Cotterill (unrep, 7/6/93, NSWCCA) R v Galvin (No. 2) [1961] VR 740 R v Micallef [2002] NSWCCA 480
Texts Cited:	Nil
Category:	Principal judgment
Parties:	NSW Police (Prosecutor) Benjamin Gittany (Defendant)
Representation:	Counsel: N/A Solicitors: Sgt Batterson (Prosecutor) Elie Srour, Criminal Law Group (Defendant)
File Number(s):	2021/257601
Publication restriction:	Nil